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SATYEN VAIDYA, J. –

By way of instant petition, petitioner has assailed order dated 25.10.2024, passed by learned Senior Civil Judge, Court No.1, Kangra, District Kangra, H.P., in CMA No. 818 of 2024 in Civil Suit No. 69/2023, whereby the application of the applicant under Order 23 Rule 1(3) of the Code of Civil Procedure ( for short ‘the Code’), has been dismissed.

2. The petitioner has preferred a Civil Suit for declaration and permanent prohibitory injunction in respect of immovable property described in the plaint as suit property. It is alleged that late Shri Tulsi Ram was the father of petitioner and respondents. Smt. Godavari Devi was his wife. Petitioner claims inheritance to the estate of her father late Sh. Tulsi Ram alongwith other legal heirs by way of way of natural succession. Thus, plaintiff has challenged the Will allegedly executed by late Sh. Tulsi Ram in favour of respondents and Smt. Godavari (now deceased).

3. Smt. Godavari transferred her share in the suit property in favour of respondents. Though by implication a challenge has been made, in the suit, to the mutation order recorded on the basis of gift deed executed by Smt. Godavari Devi but the Gift Deed has not been challenged.

4. In the above background, petitioner filed an application under Order 23 Rule 1(3) of the Code, before learned trial court with a prayer to withdraw the suit with liberty to file afresh on the same cause of action. It was averred that the original plaint was drafted by one Sh. Balram, Advocate, who died subsequently. Petitioner engaged another counsel, who after examining the records opined that the gift deed of Smt. Godavari Devi was also required to be challenged. Accordingly, it is apprehended that suit may fail on account of technical defect.

5. Respondents contested the application by denying its contents in generality. It was alleged that the application has been filed only to delay the proceedings of the suit. An objection was taken that the petitioner could seek amendment in the plaint.

6. In rejoinder filed by the petitioner, the contents of the application were reiterated. In addition, it was submitted that the gift deed could not be challenged by amendment and could only be done by filing fresh suit on the same cause of action. It was also stated that since the suit was at initial stage, no prejudice was going to be caused to the respondents.

7. Learned Trial Court has dismissed the application on the ground that the plea sought to be raised by the petitioner could be raised by seeking amendment of the pleadings.

8. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

9. Order 23 Rule 1(3) of the Code of Civil Procedure, reads as under –

“Order 23 Rule 1. Withdrawal of suit or abandonment of part of claim: (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.

3) Where the Court is satisfied-

(a) That a suit must fail by reason of some formal defect or

(b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of his claim.”

10. A copy of plaint has been placed on record. In the plaint, it is alleged that respondents alongwith their mother Smt. Godavari Devi had got executed a Will dated 02.04.2013 from late Shri Tulsi Ram by fraud and misrepresentation etc. It is further averred that on the basis of the will, the suit land was mutated in the name of respondents and their mother Smt. Godavari Devi vide mutation No. 2788, dated 20.01.2017. Thereafter the respondents got executed a gift deed from their mother Smt. Godavari Devi to the extent of her share in their favour and mutation No. 2804, dated 22.02.2017 was attested on that basis. The mutations have, thus, been challenged in the suit.

11. It is clear that though the petitioner has raised her grievance against execution of the gift deed by Smt. Godavari Devi in favour of the respondents and the consequent attestation of mutation, but no specific relief has been prayed to declare the gift deed illegal, null or void and not binding on the rights of petitioner. The plaint also lacks factual foundation which can be made basis to challenge the gift deed executed by Smt. Godavari Devi in favour of the respondents.

12. Petitioner intends to withdraw the suit with liberty to file afresh on the same cause of action by alleging that plaint suffered from formal defect. The prayer for withdrawal of suit by petitioner is backed with the reason that the necessary averments and relief with respect to illegality of gift could not be incorporated in original plaint due to the legal advice as was made available to the petitioner at the time of institution of plaint.

13. Noticeably, petitioner is claiming right in the estate of her deceased father because she has been excluded from inheritance by execution of Will in favour of the respondents and her mother. The mother has further transferred her share, inherited under the will of late Sh. Tulsi Ram, in favour of her sons (respondents) and again, the petitioner has been excluded. It cannot be said that there has been any intentional omission on part of petitioner in not disclosing the factual position to the counsel; as the averments showing grievance of petitioner against the gift deed executed by Smt. Godavari in favour of respondents is available in original plaint also.

14. It is also clear that there has been omission in the plaint to include whole of the claim, which plaintiff was entitled to make in respect of the cause of action available to her. Such omission entails consequences under order 2 rule 2 of the Code. The petitioner cannot sue again in respect of the omitted portion of the claim. Thus, the likelihood of the suit failing on a technical defect cannot be ruled out.

15. The cause of action as pleaded by petitioner in the plaint arises from her exclusion from inheritance to the estate of her late father Sh. Tulsi Ram. The mother of petitioner was also the beneficiary of alleged Will of late Sh. Tulsi Ram. Subsequent gift by Smt. Godavari Devi in favour of the respondents, of the share in property inherited from late Sh. Tulsi Ram, cannot be said to be a fact alien to the issues raised by petitioner in the suit. The petitioner alleges connivance between the respondents and Smt. Godavari. In such view of the matter, without laying challenge to the subsequent Gift Deed executed by Smt. Godavari in favour of respondents, the claim of the petitioner in the suit might suffer on merits.

16. Even otherwise, the petitioner had made out sufficient grounds for allowing her to institute a fresh suit for the same subject matter. Since, the plea which had been left from incorporation, could not be said to be alien to the subject matter or cause of action of the suit, even the requirements of order 23 rule 1(3) (b) were satisfied.

17. Further, the suit is at very initial stage. The issues have not been framed; therefore, no prejudice was likely to be caused to the respondents. Needless to say, the withdrawal of the suit is always subject to the provision of Order 23 Rule 2 of the Code and thus the petitioner cannot avail any undue advantage from allowance of her prayer made in the application.

18. The reasons assigned by learned Trial Court to reject the prayer of the petitioner also cannot be sustained for the reason that the same cannot be a rule in general. Learned Trial Court could not have assessed the merits of the case of petitioner at the touch stone of parameters required for allowing amendment in pleadings.

19. In result, the petition is allowed. The order dated 25.10.2024, passed by learned Senior Civil Judge, Court No.1, Kangra, District Kangra, H.P., in CMA No. 818 of 2024 in Civil Suit No. 69/2023, is set aside. The application of the petitioner CMA No. 818 of 2024, is ordered to be allowed. Petitioner is permitted to withdraw the suit with permission to file afresh on the same cause of action.

20. The petition is accordingly, disposed of, so also the pending miscellaneous application(s), if any.

Petition allowed.

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