Case No: Civil Appeal No. 75 of 1985
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Muhammad Jamiruddin Sarkar ,Sharifuddin Chaklader,,
Citation: 41 DLR (AD) (1989) 156
Case Year: 1989
Appellant: Md. Badruddin Moral and others
Respondent: Santosh Kumar Sen and others
Subject: Procedural Law,
Delivery Date: 1987-11-2
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
Md. Badruddin Moral and others
Santosh Kumar Sen and others
November 2, 1987.
The Code of Civil Procedure, 1908 (V of 1908)
Order XXIII, rule 1(2)
The learned Munsif rightly rejected the prayer for withdrawal of the suit with permission to sue a fresh on the ground of defect in the schedule, at the stage, the case was ready for trial. Such defect could be corrected by amendment of the plaint which the plaintiff did not during long pendency of the suit. The High Court Division rightly confirmed the order. A party cannot be forced to withdraw its suit or abandon its claim in the suit. If the plaintiffs are still willing to proceed with the suit they may do so and it will be disposed of in accordance with law…………………..5 & 6)
Jamiruddin Sircar, Advocate, instructed by Mvi. Wahidullah, Advocate-on-Record —For the Appellant.
Sharifuddin Chaklader, Advocate-on-Record —For the Respondents No. 1-5.
Not represented-Respondent Nos. 6-11.
Civil Appeal No. 75 of 1985
A.T.M. Afzal J.
This is a plaintiffs' appeal by leave. The question raised is whether the High Court Division was justified in summarily rejecting the appellant's revisional application against the order of the Munsif, Debhata Upazila in Title Suit No. 8 of 1985 refusing permission to withdraw the said suit with liberty to sue afresh under Order XXIII, rule 1(2) of the Code of Civil Procedure.
2. The aforesaid suit was originally instituted in the court of Munsif, Saikhira being Title Suit, No. 143 of 1973 and on transfer to Debhata Upazila it was renumbered Title Suit No. 8/85. The suit was for declaration of Title and further that the S.A. Khatian was wrong. Some of the defendants filed written statement raising, amongst others, the plea of res-Judicata.
3. On the date of peremptory hearing of the suit (9.3.85) the plaintiffs filed a petition for withdrawing the suit with liberty to bring a fresh suit on the ground that there were defects in the schedule and parties and other formal defects in the plaint due to incorrect description given at the time of the drafting of the plaint and that the plaintiffs would suffer for such defects. The prayer was, however, rejected and the order upheld in revision by the High Court Division by the impugned order dated 1.4.85.
4. The learned Advocate for the appellants submitted that the plea of res judicata taken in the written statement necessitated the filing of the petition for withdrawal with permission to bring-fresh suit. There is no substance in this contention as the same docs not find place cither in the petition filed before the trial court or in the ground raised here.
5. The learned Munsif observed in his order, and we find rightly, that it was not specifically stated as to what the formal defects were and that the defects in the schedule and as to parties could be amended by filing a petition for amendment of the plaint. It was also noticed that the suit was an old one which was, once dismissed for default and plaintiffs took no steps for amending the plaint during the long time the suit was pending. It is clear, therefore, that the discretion vested in the court under Order XXIII, rule 1 (2) C.P.C. has been properly exercised and the learned Judge of the High Court Division committed no illegality in rejecting the revisional application summarily.
6. The learned Advocate for the appellants expressed an apprehension that the suit may not be proceeded with as the learned Munsif while rejecting the prayer for withdrawal ordered that the plaintiffs were permitted to withdraw the claim in the suit only. We do not think that there is any reason for such apprehension, for, the learned Munsif rejected their prayer for withdrawal of the suit with liberty to institute a fresh suit but at the same time gave them the option to abandon their claim in the suit which they may or may not avail. Evidently a party cannot be forced to withdraw its suit or abandon its claim in the suit. If the plaintiffs are still willing to proceed with the suit they may do so and it will be disposed of in accordance with law.
The appeal is dismissed without any order as to cost.