P L D 1961 Dacca 844 (PLP)

2. The plaintiff-respondent instituted a suit out of which the present appeal has arisen, for declaration of his title to and confirmation of possession in the suit land and, in the alternative for recovery of khas possession if the defendants be found in possession of the said land. The suit was contested by some of the defendants denying the plaintiff's title to and possession in the disputed hand. The trial Court dismissed the suit holding, inter alia, that the suit was not maintainable in its present form; that the description of the suit properties was wrong, vague and indefinite; that the suit was bad for defect of parties; that the suit was also barred by limitation: and that the plaintiff could not establish his title to the suit land. The lower Appellate Court agreed with the findings of the trial court that the description of the suit land was vague and inaccurate and that the suit was not maintainable in its present form, but it set aside the judgment and decree of the trial Court and permitted the plaintiff to with draw the suit with liberty to bring a fresh suit on the same cause of action, if not otherwise barred, with a condition precedent that the plaintiff was to pay Rs. 20 to the contesting defendants. Hence the present appeal at the instance of defendants Nos. 4 and 9.

3. Mr. Syed A. N. M. Nasiruddin, the learned Advocate for the appellants, contends that the permission granted by the learned Subordinate Judge to withdraw the suit and to bring a fresh suit on the same cause of action, is not in accordance with law. In support of his contention the learned Advocate has argued that the question as to whether the description of the suit properties is vague and indefinite is a question that goes to the very root of the case and, as such, the order of the learned Sub ordinate Judge permitting the plaintiff to withdraw the suit with liberty to bring a fresh suit on the same cause of action is not an order as contemplated by Order XXIII and section 107 of the Code of Civil Procedure. In this connection, it has been further con tended that once a fact in issue has been entered into and fought by the parties after adducing evidence, the plaintiff is not entitled to have the suit withdrawn from the Court with permission to sue afresh on the same cause of action; and in support of this con tention reliance has been placed on the cases of Nishi Kanta Sarkar v. Umar Lal Sarkar (A I R 1920 Cal. 711) and Sivagaminatha Pillai v. Venkitaswami Nicker (A I R 1949 Mad. 295). While, on the other hand, it has been contended by the learned Advocate for the plaintiff-respondent that the words "formal defect" should be given a liberal construc tion and that when the description of the snit land is vague and uncertain, it is a formal defect within the meaning of Order XXIII of the Code of Civil Procedure. It has been further contended that the plaintiff has given c. s. dag numbers in the plaint as provided under rule 3 of Order VII of the Code and, as such, there is no vagueness and uncertainty in the description of the suit properties.

4. Now rule 1 of Order XXIII of the Code of Civil Procedure provides "Act any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim . . . ." It is not disputed that advantage of the provisions of the aforesaid Order can also be taken at the appellate stage as provided under subsection (2) of section 107 of the Code, which runs as follows "Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein." Now in my opinion, the words "at any time after the institution of a suit" in Order XXIII, rule 1 of the Code of Civil Procedure connote that the plaintiff may withdraw his suit either in the trial Court or in the Appellate Court. Sub-rule (2) of rule 1 of Order XXIII of the Code provides : "Where the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such a suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim." From this sub-rule (2) it appears that the withdrawal of the suit from the Court with permission to sue afresh, depends on the satisfaction of the Court and not on the whims or desire of the plaintiff. The Court must be satisfied as to the reason of such formal defect for which the suit must fail.

3. The legal meaning of the word "formal" is "done in due form or with solemnity ; according to regular method etc". Now, the question is whether the words "formal defect" should be construed liberally or strictly. In my opinion, the said words should not be construed strictly but must be given a wide and liberal meaning and affect the merits of the case. In the case of Robert Watson & Co. v. The Collector of Zillah Rajshaye and others (13 M I A 160), the plaintiff at first brought a suit to set aside an auction -sale of a putnee talook. A preliminary issue was framed as to whether the plaintiff was entitled to sue. A commission was issued for the purpose but the plaintiff did not produce any evidence and, as such, the suit was dismissed for want of evidence with a reservation that the order passed was not to be a bar to afresh suit by the plaintiff. The plaintiff then filed another suit on the same cause of action and the High Court held that the suit was barred by the principle of res judicata. The said case rent up to the Privy Council which upheld the decision of the High Court observing "There is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the rights of the party to litigate the matter in a fresh suit ; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit, to cases in which material document has been rejected because it has not borne the proper stamp, and to cases in which there .has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty hay, been given to him to bring a second suit except in the particular instance that is now before them." The above decision of the Privy Council, it appears, was given under section 97 of the Code of Civil Procedure of 1859, as the judgment was delivered on the 14th and 15th July 1869, and not under the Code of 1877 when Order XXIII containing the words "some formal defect" for the first time, was introduced in the Code.

6. In the present case, the suit has been permitted to be withdrawn on the grounds that the description of the disputed properties is vague and uncertain and that the suit is not in the proper form. It appears from the judgment of the lower Appellate Court that there is an observation to the effect that the suit is not maintainable in the present form ; but the said judgment does not show what is meant by the words "present form". The only reason given by the learned Subordinate Judge is that the description of the suit properties is vague and inaccu rate and this is due to the mistake on the part of the plaintiff's lawyer at the trial. Now the question is whether this vagueness and inaccuracy in the description of the suit land can be called a formal defect within the meaning of Order XXIII of the Code of Civil Procedure and whether, in such circumstances, the plaintiff can be given permission to withdraw the suit with liberty to bring a fresh suit on the same cause of action subject to any legal bar.

7. It is contended by the learned Advocate for the appel lants that the aforesaid vagueness and uncertainty in the descrip tion of the suit properties were asserted in the written statement for which an issue was raised in the trial Court and the parties led evidence in support of their respective cases ; and that the trial Court, after considering the evidence, came to the finding that the description of the suit properties was vague, indefinite and unascertainable and, as such, no decree can be passed. In support of this contention, reliance has been placed on the cases of Nishi Kanta Sarkar v. Umar Lal Sarkar and Sivagaminatha Pillai v. Venkitaswami Nicker, as stated above. In the aforesaid two cases it was observed that when issues were framed and the parties led evidence in support of their respective cases and the trial Court decided the matter, the Appellate Court should not grant permission to the plaintiff to withdraw the suit with liberty to bring a fresh suit on the same cause of action. In my opinion' the aforesaid principle would be subject to one condition ; when the defect is not apparent from the plaint but an issue is raised and subsequently evidence is entered into and it is found that the suit is bad for defect of parties, in that case the above principle may not apply but when the plaintiff comes to the Court with the knowledge of the defective description of the suit land and in spite of the objection raised by the defendant goes to fight out the issue and the Court decides the ease, then, in my opinion," the Appellate Court may be justified under certain circumstances to refuse the withdrawal of the suit with liberty to sue afresh on the same cause of action.

8. Now the question is whether non-description, of the suit properties, even assuming that it is a formal defect, can be a ground for giving permission by the Appellate Court to the plaintiff to withdraw the suit with liberty to sue afresh on the same cause of action. The plaint shows the vagueness in the description of the suit properties but the learned Subordinate Judge has observed that the said defect was not due to the plaintiff but due to the carelessness on the part of his lawyer. It seems to me that though initially there was a defect in the description of the suit property and the same was pointed out by the defendants in their written statement, yet the plaintiff or his lawyer did not care to amend the plaint and give a proper description of the property; rather the plaintiff led evidence which is also vague. Hence, the permission given by the learned Subordinate Judge to the plaintiff to withdraw the suit with liberty to bring a fresh suit, is not sustainable in law in the present facts and circumstances of the case.

9. In the result, the appeal is allowed, the order of the lower Appellate Court is set aside and the case is sent back to that Court for disposal of the appeal in accordance with law and in the light of the observations made above.

10. In the circumstances of this case, I make no order as to costs. A. H. Appeal allowed.