Civil Revision Petition No. 71/2016. Case: Sandhya Devi Thapa and Ors. Vs Anjali Singh Thapa and Ors.. Tripura High Court

Case NumberCivil Revision Petition No. 71/2016
Party NameSandhya Devi Thapa and Ors. Vs Anjali Singh Thapa and Ors.
CounselFor Appellant: A.K. Bhowmik, Sr. Advocate and A. Banik, Advocate and For Respondents: K.N. Bhattacharjee, Sr. Advocate, P.K. Dhar and R.G. Chakraborty, Advocates
JudgesT. Vaiphei, C.J.
IssueCode of Civil Procedure, 1908 (CPC) - Order II Rule 2; Order VII Rule 11; Order XXIII Rules 1, 1(3), 3, 4; Order XXXII Rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14; Sections 11, 151; Constitution Of India - Article 227; Specific Relief Act 1963 - Section 31
Judgement DateJanuary 19, 2017
CourtTripura High Court

Judgment:

T. Vaiphei, C.J., (At Agartala)

1. Whether, on the facts and circumstances of this case, the learned Civil Judge, Senior Division, is correct in permitting the respondents to withdraw the suit with a liberty to institute a fresh suit, is the moot point in this civil revision.

2. The controversy is best understood by referring to the brief facts of the case. On or about 15-2-2010, the respondent, who is the plaintiff in the suit, claiming to be a mentally retarded person instituted a suit against the petitioner for declaration and recovery of khas possession as a consequential relief and also for cancellation of instrument under Section 31, Specific Relief Act, 1963. Some other persons were also impleaded as pro forma defendants without claiming any relief from them. The suit was registered as Title Suit No. 19 of 2010. The petitioner contested the suit and filed her written statement. She also filed an application under Order VII, Rule 11 read with Section 151 CPC praying for rejection of the plaint, but the application was rejected by the trial court. The civil revision filed by the petitioner before this Court against the rejection of her application came a cropper. Seven issues were framed by the trial court, one of them was Issue No. 3, namely, whether the suit is barred by res judicata. On the application of the petitioner, the trial court agreed to hear the said issue No. 3 as preliminary issue. After hearing the parties, the trial court, however, took the view that the issue concerning limitation could not be decided without deciding Issue No. 6 and, therefore, proceeded to try all issues and directed the respondent to file examination-in-chief by affidavit.

3. The petitioner approached this Court under Article 227 of the Constitution in CRP No. 105 of 2015. This Court by the order dated 5-4-2016 set aside the order of the trial court and directed it to decide Issue No. 3 and, if necessary, Issue No. 6 as preliminary issues keeping in view the peculiar facts and circumstances of this case. This Court also permitted the adduction of evidence with respect only to the mental illness of the plaintiff-respondent and not on any other issue. The trial court thereafter proceeded to examine witnesses for the respondent and examined three witnesses as produced by her. Cross-examinations of those witnesses were also completed. However, on 28-5-2016, the respondent all of a sudden filed an application under Order 23, Rule 3 read with Section 151 CPC seeking permission to withdraw the suit with liberty to institute a fresh suit in respect of a part of her claim. The petitioner opposed her application and promptly filed her written objection thereagainst. The trial court, after hearing the parties, passed the impugned order on 3-6-2016 allowing the respondent to withdraw the suit with a liberty to file a fresh suit on the same subject-matter subject to...

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