CPC - S. 11, O 23, R 3  

CONSTRUCTIVE RESJUDICTA bars the petitioner to re-agitate the same cause having once consciously preferred to file suit and not seeking permission of the Court under Order 23 Rule (3) CPC to re-file a petition on the same cause of action - Having not done so, the petitioner relinquished/ abandoned his claim. (2020-1) Punjab Law Reporter 809

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  1. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1, Section 96, 11 - Order 23 Rule 1 CPC says that on the same cause of action a fresh suit cannot be filed when the earlier suit stands withdrawn - When a judgment is passed rejecting the plaint on the account of the same lacking cause of action then the decree so passed is appealable under Section 2(2) read with Section 96 CPC and if no appeal is filed then the earlier judgment will get the flavour of finality on principle akin to Section 11 CaPC - Appeal dismissed - Costs imposed - Punjab High Court Rules and Order Volume V, Chapter VI, Part I, Rule 15. (174) P.L.R. (Del.)
  2. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1, Sub-rule 3 - Though provides jurisdiction to the Civil Court to allow the party to withdraw its suit to file it afresh if there is a formal defect but the Court has to look into the application and find out that whether there exists formal defect or not - Even if mortgagor has authorised the mortgagee to induct tenants but after redemption, tenants of the mortgagee do not become tenants of mortgagor even though mortgagor has been receiving rent from tenants. (179) P.L.R.
  3. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1 - Application to withdraw the suit with liberty to file fresh suit - Petitioner-plaintiff had filed a suit for declaration and injunction qua her share as a coparcener in HUF properties located in Fazilka and New Delhi - On having been counselled by another counsel, she realised that she was not in possession of some of the properties and seeking of relief of possession or joint possession by way of partition, was necessary - Plaintiff who concededly is a widow living at a far off place from Fazilka could not have been in the know of day to day developments qua the lis in dispute and thus apparently was not apprised of the developments taking place qua the property in dispute - It is a clear case where the learned lower court has committed illegality in declining the request of the petitioner-plaintiff to withdraw the suit with liberty to file fresh one on the same cause of action. (178) P.L.R.
  4. Civil Procedure Code, 1908 (v of 1908) Order 23, Rule 1 - No reason has been recorded to indicate that there was a formal or technical defect in the suit - It was incumbent upon the trial Court to record findings about the formal or technical defect and further that on account of that formal defect the suit is likely to fail - The provisions of Order XXIII Rule 1 CPC have also not been followed as merely on the oral prayer of learned counsel for the plaintiff, suit has been permitted to be withdrawn to file fresh one - Order set aside. (182) P.L.R.
  5. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1 - Provision of Order XXIII Rule 1 CPC is based on public policy not to give an opportunity to a litigant to abuse the process of the Court - Such a legal bar is a matter concerning the Court - Even if the defendant had not raised in the written statement as to such a legal bar, the Court having come to know of the earlier suit filed and withdrawn without any liberty is competent to take up the issue suo motu and dismiss the suit - The parties to the suit have no right to give up a legal bar to institute a second suit - In the instant case, concession given by the defendants' counsel during the course of arguments does not debar the Court from taking up such a legal issue and decide it. (177) P.L.R.
  6.  Civil Procedure Code, 1908, Order XXIII Rule 1 (1) - Gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim -  There is no doubt that Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Bijayananda Patnaik v. Satrughna Sahu (1962) 2 SCR 538, 550, relied.  (2018)2  SCe@Journal 1364
  7. Civil Procedure Code, 1908, Order XXIII Rule 1 (1) - Effective date of the Dismissal of Appeal - Date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. (2018)2  SCe@Journal 1364
  8. Civil Procedure Code, 1908, Order XXIII Rule 1 (1) - Gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim -  There is no doubt that Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Bijayananda Patnaik v. Satrughna Sahu (1962) 2 SCR 538, 550, relied.  (2018)2  SCe@Journal 1364
  9. Civil Procedure Code, 1908, Order XXIII Rule 1 (1) - Effective date of the Dismissal of Appeal - Date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. (2018)2  SCe@Journal 1364 
  10. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1(3) - East Punjab Urban Rent Restriction Act, 1949 (III of 1949) S. 13-B - Objection taken in written statement are relatable to the fact that the description of the property is not correct and that the documents attached with the petition supporting the claim in the petition pertain to some other petition - Application filed under order 6 Rule 17 pending - Application under Order 23, Rule 1(3) - There is no factual averments made in support of the fact that there are some technical defects in the pleadings - Order impugned is totally silent in this regard and had only referred to the aspect with regard to the plea that there are certain technical defects in the pleadings - Ordered revival of the proceedings before the Rent Controller at the stage when the application was filed under Order 23 Rule 1(3) of the CPC. (182) P.L.R.
  11. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1(3) - Permission to withdraw the petition with liberty to file a fresh one granted - It is not in dispute that an application under Order 6 Rule 17 of the CPC has been filed for amendment of the plaint which was pending when the application under Order 23 Rule 1(3) of the CPC was filed - In this application under Order 23 Rule 1(3) of the CPC - An objection with regard to the maintainability of the said application and non-discloser of the technical defects, which according to the petitioner crept in the eviction petition, which cannot be cured by amendment having not been mentioned, has been taken - That there is no factual averments made in support of the fact that there are some technical defects in the pleadings - In the absence of any factual averments to that effect and merely at the asking of the applicant/respondent-landlords, the same could not have been accepted by the Court as the application must disclose the technical defects in the pleadings which cannot be cured by any other means including the amendment application - As regards the sufficiency of facts which a Court has to see so as to satisfy itself, there is nothing in order - Order set aside.  (182) P.L.R.
  12. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1(3) - Withdrawal of the suit with a liberty to institute a fresh suit on the same cause of action, has been declined - Clearly enough non service of notice under Section 80 CPC a pre-requisite for filing a suit against Government or a Public Officer, is a serious infirmity - Omission to issue notice under Section 80 CPC is not a formal defect - Plaintiff petitioner herein, continued to proceed with the suit and when evidence of the defendants was being recorded and the suit was at the conclusion stage, the plaintiff woke up from the slumber and made this application - Order upheld.  (178) P.L.R.
  13. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1(3) clause (a), (b) - Mere fact that the defendant in the written statement has pleaded his ownership on the basis of sale deed executed in his favour by one of the co-sharers and the petitioner intends to challenge the said sale deed is not a contingency prescribed under the aforesaid provision to permit the petitioner to withdraw the suit with permission to file a fresh one on the same cause of action. (182) P.L.R.
  14. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1(4) - Earlier suit which was laid by the plaintiffs in respect of the same subject matter of the suit was dismissed as withdrawn without any liberty accorded to the plaintiffs to institute a fresh suit - A legal bar under Order XXIII Rule 1(4) CPC debars the plaintiffs from instituting a fresh suit in the absence of any leave. (177) P.L.R.
  15. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1(4) - Subject Matter - Would mean the plaintiffs cause of action for his suit - `Subject Matter' does not relate to the property rather it relates to right in the property - The cause of action in the earlier suit was of the year 1981 when the defendants were trying to interfere in the possession of the plaintiffs whereas the cause of action in subsequent suit is of the year 1983 - Therefore, the date of the cause of action in both the suits is different and as such, the provisions of the Order 23 Rule 1(3) are not applicable to the present controversy. (175) P.L.R.
  16. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 1(4) - Withdrawal of suit - Suit withdrew by sub-attorney when he had no power subsisting at that time - Consequently he played a trick with the Court as well as with plaintiff - Observation of the trial Court in impugned order that the restoration application does not lie and only separate suit would lie on the ground that previous suit was withdrawn fraudulently, cannot be accepted - When there was no valid withdrawal of the suit, restoration application would certainly be maintainable and the Court has inherent power under Section 151 CPC to restore the suit which was got dismissed as withdrawn by playing fraud on plaintiff as well as on the Court - Consequently, impugned order of the trial Court dismissing the restoration application is illegal. (173) P.L.R.
  17. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3, 3-A - Decree passed on a compromise - Court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order XXIII Rule 3A of CPC. R. Rajanna  v. S.R. Venkataswamy  . (S.C.)(179) P.L.R.
  18. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Compromise - Ancestral property - That the compromise was thus not binding on the rights of the minors affected by transfer of suit land by their father as per their share in ancestral property - Compromise effected without there being anything in writing supporting the compromise and on an oral statement of the advocate - Court is the guardian of the minor and is in loco parentis and is enjoined to remain vigilant to pass such orders as protect their rights till they reach the age of discretion. (179) P.L.R.
  19. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Compromise - If the court finds that the compromise  has been signed by both parties and one of the parties was resiling from the same, he shall set out the legal justification for the same and the court is bound to record the finding whether the compromise was true or not - If the compromise was true, there is no way a party can resile from the same by picking up some points which are not part of the record - If the defendant was contending that there was an agreement by the plaintiff to pay Rs.10 lakhs, he was setting up a case which was barred by law - That Section 91 of the Evidence Act excludes parole evidence in respect of terms of a written contract - Such as an alleged undertaking to pay additional amount of Rs.10 lakhs, the court ought to have simply concluded the same by observing that the plea taken by the defendant for rejecting the compromise was not tenable - Evidence Act, 1872 (1 of 1872) S. 91, 92. (178) P.L.R.
  20. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Decree based on compromise pointed out semblance of interest and was not required to be compulsorily registered as the decree recognised pre-existing right of the defendants and it cannot be said that right was created in favour of defendants for the first time. (182) P.L.R.
  21. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Enquiry that is contemplated under Order 23 Rule 3 CPC shall be only the validity of the compromise, if a party to the compromise denies the same - If the court finds that the compromise has been signed by both parties and one of the parties was resiling from the same, he shall set out the legal justification for the same and the court is bound to record the finding whether the compromise was true or not - If the compromise was true, there is no way a party can resile from the same.       (180) P.L.R.
  22. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Execution - If any settlement was arrived at between the parties, the Executing Court was to be taken into confidence but it did not happen - Even otherwise, the JD had remained silent on the score of settlement made when the objection was filed - Why not a whisper was made about receipt right from the date of execution for a period of about ten month.  (179) P.L.R.
  23. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - In case where a compromise is asserted by the plaintiff or the defendant under Order 23 Rule 3 of the CPC and denied by the other side, it is incumbent upon the Court to hold an enquiry by framing issue of its existence. (177) P.L.R.
  24. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Makes it clear that an agreement to compromise which is void or voidable shall not be lawful within the meaning of the rule - If a compromise is therefore vitiated under any of the circumstances spelt out under the Contract Act, then the compromise cannot be taken to be valid - If the petitioner's own signature is an admitted fact and if she was setting up vitiating circumstance, then all the trappings of rule of evidence for assailing a contract would apply to a compromise also - Contract Act, 1872 (9 of 1872). (179) P.L.R.
  25. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Parties to the dispute expressed their intention to refer the matter before mediation and conciliation centre of the High Court - Compromise was arrived at - Applicant had initially filed a suit for allotment of eight plots after accepting money against the company - Discharged the burden of executing the agreement in favour of the applicant - Agreement before the Mediation was duly signed by the authorized representatives on behalf of the said company - Hence, in this background, it was not necessary that all the subsequent purchasers should have signed the agreement/compromise - Appeal disposed of in terms of the settlement agreement. (179) P.L.R.
  26. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Proviso - Provision of the Order 23 requires that any adjudication in the compromise shall be taken up immediately and even if there is an adjournment, the Court shall record its reasons in terms of the order 23 Rule 3 Proviso - That was precisely the reason why I had directed the original to be filed - If there is no ground made for non-production of the original and the applicant will also not give any evidence in support of his own document, the application only deserves to be rejected, both, on the ground of the inadmissibility of the document and for want of proof of the recitals in the compromise.  (178) P.L.R.
  27. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - Suit compromised - Application that Presiding Officer pressurised to accepting compromise and that the Court proceeded to issue compromise decree - Counsel who had appeared on behalf of the plaintiffs has not supported the allegations made against the Presiding Officer either through affidavit or  evidence - Application for review - It would have been unethical for a counsel to give evidence in the case where he has appeared - The appropriate procedure in such a case is only to withdraw the authority of representation through vakalatnama authorizing yet another counsel to appear on behalf of the parties and the former counsel to give evidence in support of what the parties were contending for.    (173) P.L.R.
  28. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3 - There was no justification in allowing the objection to the compromise to be brought without any reason and to allow for trial of the suit - The court was exercising the jurisdiction, which it did not have.        (180) P.L.R.
  29. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3-A - In view of the bar created no suit shall lie to set aside the decree on the ground that compromise on which the suit was based was not lawful - At the most the plaintiff could have filed application in the said suit as all the issues are required to be decided in the same suit - Since particulars of fraud have not been pleaded and proved in the case, therefore, the suit was not maintainable in view of bar created. (182) P.L.R.
  30. Civil Procedure Code, 1908 (V of 1908) Order 23, Rule 3(2), Order 22, Rule 4(3), Order 22 Rule 8(2) - From the resume of the discussion, it is clear that Order 22 Rule 3(2), Order 22 Rule 4(3) and Order 22 Rule 8(2) of the CPC are all consequential provisions that in case the party to the suit, as the case may be, does not resort to Order 22 Rule 3(1), Order 22 Rule 4(1) and Order 22 Rule 8(1) of the CPC, which are enabling provisions to file the application to implead the legal representatives, the effect thereof would be of abatement, however, there are amendments by this Court vide notification dated 21.02.1992 in Order 22 Rule 3(2) of the CPC and vide notification dated 17.03.1975 in Order 22 Rule 4(3) of the CPC which save the suit from abatement but there is no such amendment in Order 22 Rule 8 and Order 22 Rule 12 of the CPC which are also applicable to this Court -Order 22 Rule 12 of the CPC says that Order 22 Rules 3, 4 and 8 of the CPC would not apply to the proceedings in execution of a decree or order, meaning thereby that if the death occurs either of the plaintiff/decree-holder or the defendant/judgment debtor during the pendency of the execution, it would not abate and the execution can proceed after the death of decree-holder after impleading the legal heirs. (177) P.L.R.
  31. Civil Procedure Code, 1908 (V of 1908) Order 23 - Suit filed - After the appeal had been filed to this Court, the plaintiff had it withdrawn without securing any liberty to file a fresh suit - If a suit is filed in respect of the very same subject matter and the appeal were withdrawn, when there were findings against him regarding his own status, it would constitute abandonment of action and the suit shall be barred under Order 23 CPC.  (182) P.L.R.