1992 PLP 1301 (MLD)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment and decree of the High Court dated 26-9‑1989, whereby accepting the appeal filed by Abdul Ghafoor, plaintiff‑respondent, the judgment and decree of the District Judge were set aside. Brief facts giving rise to the present appeal are that Abdul Ghafoor, plaintiff'‑respondent, filed a suit for possession regarding the property in dispute on 3‑1‑1985 in the Court of District Judge, Mirpur, alleging that Plot No.300, measuring one kanal, situate in Siakh Hamlet, was duly allotted to him over which he constructed two rooms. According to the plaintiff‑respondent, about 5/G years prior to the institution of the suit, he handed over the possession of the said house to Allah Ditta, defendant‑appellant, one of his close relatives, for the purpose of residence, as he had no alternate accommodation for residential purposes. The defendant‑appellant promised to return the possession of the house on demand. But, subsequently, when the plaintiff‑respondent sought the possession of the house, the defendant appellant refused to oblige. The defendant‑appellant resisted the suit mainly on the ground that the plot in dispute was purchased by him for a consideration of Rs.2,000 and afterwards he constructed the house over the same in the year 1969. In alternative, he pleaded that his possession over the disputed house had ripened into ownership through prescription. The District Judge, after the conclusion of the trial, upheld the plea of adverse possession taken by the defendant‑appellant and dismissed the suit for possession. Consequently the respondent filed an appeal in the High Court which was accepted and a decree for possession was passed in his favour. 1t is against the aforesaid judgment and decree of the High Court that the present appeal has been preferred to this Court. It may be stated that previous to the filing of the suit in the Court of District Judge, the plaintiff‑respondent had filed a suit in the Court of Sub- Judge, Dudyal, on the same cause of action but he subsequently withdrew the same with permission to re‑institute it on the ground that plot on which the house in dispute was constructed was numbered as 300, whereas he described the same in his plaint as No.305. The valuation of the house in former suit was fixed as Rs.15,

000. However, subsequently when the plaintiff‑respondent was allowed to withdraw the suit with permission to re‑institute the same, tile plaintiff‑respondent filed the second suit on the basis of title in the Court of District Judge instead of Sub‑Judge, fixing the jurisdictional value of the same as Rs.28,

000. The leave was sought from this Court to file an appeal on the ground that the subsequent suit filed in the Court of District Judge was barred by the principle of res judicata because the plaintiff‑respondent was not legally competent to fix the jurisdictional value of the suit arbitrarily so as to institute the suit in the higher forum, i.e., m the Court of District Judge. The learned counsel for the appellant has argued that the second suit was barred by the principle of res judicata and was not maintainable. It has been also contended on behalf of the appellant that ordinarily a suit has to be filed in the lowest forum of the competent jurisdiction and, thus, the plaintiff was not entitled to increase its jurisdictional value arbitrarily and institute the same in the higher Court. It may be stated here that as these points were not raised in any of the Courts below, there is no finding on the same. However, leave was granted to consider the validity of the above reflected points. The learned counsel for the appellant #contended that as the application for the withdrawal of the suit did not fall within the purview of Order 23, C.P.C., the suit could not be returned with permission to bring the same afresh. According to the learned counsel for the appellant, the order of withdrawal was void ab initio and, thus, the former suit constituted res judicata against the plaintiff‑respondent and he was precluded to bring second suit on the same grounds. The learned counsel has cited the following authorities in support of his contention:‑ In Rama Singh v. Janak.Singh AIR 1920 Pat. 63, the facts of the case were that two suits were instituted by the plaintiff for declaration of title and confirmation and in alternative for the recovery of possession of certain plots of the land. It was found that previous to the aforesaid suits he had also instituted suits on the same cause of action about the said plots in the year 1942 which were dismissed by the Munsif. On appeal to the Subordinate Judge, the plaintiff was allowed to withdraw the suits with permission to re‑institute the same. It was admitted by the counsel for the opposite party that the order of withdrawal passed by the Subordinate Judge was not covered by the provisions contained in Order 23 rule 1, C.P.C. Consequently, the Munsif dismissed the suits observing that the order of Subordinate Judge for withdrawal of first two suits was without jurisdiction and, as such, the second suits were barred by res judicata. On appeals to the District Judge and the High Court, the view expressed by the Munsif was affirmed on the ground that the order of withdrawal of first suits would constitute bar of res judicata to the subsequent suits. In Bhagwati Prasad v. Achhaibar Singh AIR 1923 Oudh 93, it was observed that the defendants who had accepted the value of property for the purposes of jurisdiction cannot be permitted to question such value subsequently by shifting his stand so as to facilitate the preferring of an appeal to higher forum. It may be stated here that the dispute relating to different valuation for the purposes of jurisdiction of the Court started in the same suit and not in the subsequent suit after the withdrawal of the former one. In (Chelasani) Rattyya v. Anne Brahmayya AIR 1925 Mad. 1223, it was observed that the value given in the plaint for the purposes of jurisdiction which was also admitted by the defendant in the written statement cannot be questioned by the plaintiff when the defendant seeks permission for leave to appeal to the Privy Council. The learned counsel has also cited an extract from AIR 15 years Digest (1951‑1965), wherein a reference is made to a case reported as.1964 M.P.L.J. (Notes) 130 in terms that where the suit was valued at Rs.300 and was filed in the Court of Civil Judge Class‑II, the plaintiff was not allowed to change the jurisdictional value by filing an application of withdrawal of the same with liberty to re‑institute it. As the detail of the case is not recorded in the note, the facts of the case are not ascertainable. However, it appears that the withdrawal was sought on the plea that jurisdictional value was wrongly fixed. This is indicative of the fact that while, disallowing the' application of withdrawal, the Court stated the procedure for doing the needful. The learned counsel for the plaintiff‑respondent, Ch. Muhammad Taj, has controverted the legal propositions propounded by the learned counsel for the appellant and has maintained that the defendant‑appellant was not legally competent to raise the points which he failed to take in any of the Courts below. He has further contended that the copies of the application and the order of the withdrawal etc., placed on the record of this Court, cannot be looked into because the same were not filed in the Courts below. He has also maintained that the legality of the order of the withdrawal of the previous suit cannot be challenged in the subsequent suit because it would be deemed as if the plaintiff‑respondent had not filed any suit prior to the institution of the subsequent suit; he would be deemed to possess the same legal character which he had before the institution of the earlier suit. The learned counsel for the respondent has also maintained that the order of the withdrawal of the 'former suit would not constitute bar of res judicata even if the said order suffers from any legal infirmity; after the order of withdrawal of the former suit, the same would be deemed to be non‑existent for all practical purposes. The learned counsel has cited the following authorities in support of his contention:‑ In Ala Baksa v. Majibal Haq AIR 1935 Cal. 739 it was held that where the previous suit was withdrawn by the plaintiff with permission to bring a fresh suit, the Court trying subsequent suit is debarred to inquire into the question as to whether the order granting permission to withdraw was made according to law or not. In Bhimangouda v. Sangappa Irappa Patil AIR 1960 Mysore 178, it was observed that an order for withdrawal of suit with a view to institute a fresh suit being within the ambit of Order 23 rule 1, C.P.C., is not an order made without jurisdiction. The order can be challenged in revision on the ground that it was passed with material irregularity but the order is not null and void; the second suit instituted on the basis of the order of withdrawal is maintainable. In Sukumar Banerjee v. Dilip Kumar Sarkar AIR 1982 Cal. 17, it was observed that when the permission is granted to withdraw a suit to re‑institute the same, the findings in the former suit would not constitute res judicata to the subsequent suit. In Becharam Choudhuri v. Purna Chandra Chatterji AIR 1925 Cal. 845, it was held that When the suit is allowed to be withdrawn by leave to bring a fresh suit under Order 23, C.P.C., it is always regarded as to have never been instituted. The suit withdrawn becomes irrelevant; it gives no fresh start of any limitation or afford a fresh cause of action. In Nirbheram Fatte Kurmi v. Sukhdeo Kisun Kurmi AIR 1944 Nagpur 307, it was held that an order of withdrawal of a suit with leave to institute a fresh suit made in the circumstances not falling within the scope of Order 23 rule 1(2) of C.P.C. is not an order without jurisdiction. It is liable to be challenged in revision on the ground that the order passed suffered from material irregularity. A fresh suit instituted in consequence of the permission granted is maintainable and the Court trying the subsequent suit is not competent to enter 'into the question as to whether the Court which granted the plaintiff permission to withdraw the former suit with liberty to bring a fresh suit had the power to make order or the same was properly made. . . We have given due consideration to the arguments raised at the Bar. It may be stated that the authorities cited by the learned counsel for the appellant in support of his contention that the jurisdictional value cannot be changed by the plaintiff were given in the same proceedings and not in the suits which were filed after the withdrawal of the former suits. The question of changing the jurisdictional value in a suit with a view to seek the remedy in any other forum or to file an appeal in a higher, forum is a different matter from the one to change the valuation in the suit which is filed after the withdrawal of the first suit by changing its jurisdictional value. It has already been stated that the former suit filed by the plaintiff‑respondent was a suit for declaration with consequential relief. In a declaratory suit with consequential relief the plaintiff is entitled to fix the notional value for the purposes of jurisdiction. and the court‑fees subject to the condition that the value for the purposes of, jurisdiction and the court‑fees must be the same. So far as the present case is concerned, the latter suit for possession is based on the title and, thus, its jurisdictional value would be according to the market value of the property. In the written statement the defendant‑appellant did not take the plea that the market value of the suit was excessive, rather he took the stand that the market value was more than Rs.28,000 which was fixed by the plaintiff; nor he took the stand that the same was fixed excessive with a view to file the suit in the Court of District Judge. Under section 11 of the Suits Valuation Act if the jurisdiction of the Court is not assailed on the basis of incorrect jurisdictional value in the written statement, the same cannot be questioned afterwards. Even otherwise, the defendant‑appellant is not permitted to play both hot and cold by taking contradictory stands in the written statement and the one taken in this Court regarding the jurisdictional value of the suit. The view taken in the authority reported as Rama Singh v. Janak Singh (AIR 1920 Pat. 63), relied by the learned counsel for the appellant, was 'not followed in the latter pronouncements by the judicial authorities in any of the subsequent cases. It seems to be a settled law that the wrong order of withdrawal is neither void nor that can adversely affect the institution of a subsequent suit. If a plaintiff is permitted to withdraw the suit with permission to re‑institute the same, he is not bound to confine his averments in the subsequent suit only to the extent on which withdrawal of the former suit was permitted. His position would be as if he had not instituted the former suit at all. Thus, the contention of the learned counsel for the appellant that as the withdrawal order in the former suit was illegal, the subsequent suit would be hit by the principle of res judicata is not tenable. It is abundantly clear from the case‑law, referred to above, that even if the former order of withdrawal is held to be illegal, the subsequent suit would not be adversely affected on the plea of res judicata or otherwise. It is a celebrated rule of law that nobody should suffer by wrong act of a Court. If a person applies for the withdrawal of the suit with the permission to re‑institute the same and the Court exercises its jurisdiction which does not fall within the purview of Order 23, C.P.C., why a litigant should suffer for that, especially so when the other party does not question the legality of the order of withdrawal by filing the revision against the same. Before parting with the case it may be observed that we shall not be taken to hold the view that the order of withdrawal of the former suit in the instant case suffers from any legal infirmity. It has been contended by the learned counsel for the appellant that the mistake regarding the correction of number of plot could be easily corrected by amendment and, thus, the withdrawal of the former suit was not necessary. It may be stated that if the defect in the suit fell within the ambit of Order 23, rule 1, C.P.C., the mere fact that the needful‑could possibly be done by amendment is not a valid ground to reject the prayer for the withdrawal of the suit with permission to bring a fresh suit. The permission to withdraw with liberty to re‑institute the same can be granted not only on the ground of a `formal defect' but also for any other sufficient cause. The scope of the expression `formal defect' is comprehensive enough to include various kinds of defects, including that of wrong description of property or fixing an incorrect‑jurisdictional value. A reference may be made to a case reported as Thakur Pd v. Rasool Bax AIR 1950 All. 489, wherein the expression `formal defect' appearing in Order 23, rule 1(2), C.P.C., was dealt with as under:‑ "

3. Learned counsel requested at the end of his argument to be allowed to withdraw from the suit with liberty to bring a fresh suit on the same cause of action Order. 23, R.1(2), Civil P.C. 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 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.' There is no formal defect in the suit. The expression `formal defect' connotes defects of various kinds not affecting the merits of the case. A defect which goes to the root of the plaintiffs' claim is not a formal defect. Defects such as omission to obtain permission if necessary, of the necessary authority before bringing the suit, misjoinder of parties or causes of action or erroneous valuation of the subject‑matter of the suit or the institution of the suit in a Court which has no jurisdiction to entertain the suit, are defects of a formal nature. But where the suit has failed because the plaintiff failed to produce evidence which he was bound to produce in support of his claim, he cannot be permitted to withdraw the claim with liberty to bring a fresh suit in respect of the same subject‑matter:' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed. No order as to the costs. AA./327/S.CA. Appeal dismissed.