M. Kishore Kumar vs Mohd. Akbar Siddiqui and Others

Motilal B. Naik, J.—This Civil Revision Petition is directed against the Order passed by the VI Assistant Judge, City Civil Court, Hyderabad in I.A.No. 133 of 1989 in O.S.No. 1813 of 1986, Dated 18-12-1989.

In order to appreciate the contentions raised in this Revision Petition, it is necessary to state few facts of the case.

The petitioner is the first defendant and the first respondent herein is the plaintiff in O.S.No. 1813/86. The suit was instituted against the petitioner and respondents 2 and 3 herein for perpetual injunction in respect of the premises bearing No. 10-4-771/643/1, Plot No. 2 in Survey No. 27 Masab Tank, Hyderabad. In the said suit, an application for interim injunction was filed which was granted by the Court. In the guise of interim orders, the first respondent made some improvements and additions to the suit premises by way of some constructions. While so, against the order of interim injunction, the matter was carried to the High Court by the petitioner-defendant No. 1 in C.R.P.No. 1162 of 1989 wherein an undertaking was given by the 1st respondent-plaintiff that he would not alter the nature of the suit premises or induct third parties to the suit premises.

In an application filed by the petitioner-defendant No. 1, the Sixth Assistant Judge, City Civil Court, Hyderabad granted an injunction restraining the 1st respondent-plaintiff from altering the nature of the suit premises. As the first respondent-plaintiff violated the orders passed by the lower Court, the petitioner-defendant No. 1 filed another application under Order XXXIX Rule 2-A of the CPC for punishing the first respondent-plaintiff for violation of orders of the Court. That petition was ordered. Subsequently, E.P.No. 1 of 1989 was filed for execution of the orders passed in the said petition. As the attachment was not properly effected, the petitioner-defendant No. 1 filed E.A.No. 47 of 1989 for grant of fresh warrant of attachment of the suit property.

As things stood thus, the first respondent-plaintiff filed I.A.No. 133 of 1989 under Order XXIII Rule 1 of the CPC praying the Court below to permit him to withdraw the suit, as he had already instituted a suit in the Court of First Additional Judge, City Civil Court, Hyderabad for specific performance of a contract, alleged to have been entered into between him and the petitioner-defendant No. 1. While allowing the said application, the Court below at the first instance directed the first respondent-plaintiff to remove all the amenities that he enjoyed by virtue of interim injunction granted earlier by the Court below, and restore it to same position as it existed at the time of institution of the suit. Against the said direction the plaintiff carried the matter by way of C.R.P.No. 1117 of 1989 to this Court. The said C.R.P. was disposed of while observing that the petitioner-defendant No. 1 had no opportunity to file counter. Therefore, while permitting the petitioner-defendant No. 1 to file a counter, in the Court below, the Court below was directed to pass appropriate orders according to law. In C.R.P.No. 1117 of 1989 the Court also made an observation as under:

"The advantages derived by the petitioner (plaintiff in the suit) by virtue of the interim order should not be allowed to be continued".

Sri B. Veerabhadra Rao, learned Counsel for the petitioner, contends that the lower Court while allowing I.A.No. 133 of 1989 filed under Order XXIII Rule 1 of the CPC Code has failed to take note of the fact that this Court while disposing of C.R.P.No. 1117of 1989 observed that the advantages derived by the 1st respondent-plaintiff by virtue of the interim order should not be allowed to be continued. Therefore, while permitting the 1st respondent-plaintiff to withdraw the suit, the lower Court ought to have directed the first respondent-plaintiff to restore back the position with regard to the property as it existed on the date of filing of the suit. It is further contended that though the lower Court at the first instance did direct the first respondent-plaintiff to restore back the amenities, on remand failed to direct him to do so. It is also contended that when once the suit is withdrawn on an application filed under Order XXIII Rule 1 of C.P.C., it is incumbent that any benefits that accrue to the party concerned by virtue of interim orders granted by the Court at the first instance, would automatically be ceased to exist. Therefore, the lower Court ought to have passed an order directing the first respondent-plaintiff to restore back the position as it existed at the time of filing of the suit. Therefore, it is contended that the lower Court has grossly erred in allowing the first respondent-plaintiff to withdraw the suit without directing him to restore the position existed as on the date of obtaining interim injunction would amount to allowing the benefits to be enjoyed though he is not entitled according to law.

Smt. Jayasree Sarathy, learned Counsel for the first respondent, on the contrary states that when an application is filed under Order XXIII Rule 1 of C.F.C., the Courts can only pass orders by imposing some terms. Therefore, the Courts are barred from withdrawing any benefits which accrued to the party concerned. The scope of the revision is limited to the extent of examining the order in I.A.No. 133 of 1989 passed by the lower Court. There is no error in the order and, therefore, no interference is warranted.

For the purpose of appreciating the contentions, it is necessary to extract the relevant provisions of Order XXIII Rule 1:

"1(1) At any time after the institution of a suit, the plaintiff may as agianst all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the provisio to Sub-rule (1) shall be accompanies by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a Certificate of the pleader to the effect that the abandonment proposed is, in his opinion for the benefit of the minor or such other person.

(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 a 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 the claim."

Smt. Jayasree Sarathy further contended that in terms of the provisions, the Court has permitted the first respondent-plaintiff to withdraw the suit on some terms. However, it cannot direct him to restore the amenities as existed prior to interim orders. The lower Court in the light of the provisions has rightly directed the payment of costs to the petitioner herein. Therefore, there is no illegality in the order.

It is natural that when once a suit is withdrawn by the plaintiff for the reasons best known to him/her, it automatically follows that whatever benefits that were initially gained by the plaintiff by way of interim orders of the Court, would naturally vanish and cease to exist. The resultant effect is the interim order becomes non-est. Therefore, it is to be understood that party would not be entitled to continue with the benefits once the suit is withdrawn by him. In the instant case admittedly, when the petition was filed by the first respondent-plaintiff under Order XXIII Rule 1 in I.A.No. 133 of 1989, the lower Court directed to restore back the amenities as existed on the date of filing of the suit. Aggrieved by such order, the plaintiff filed C.R.P.No. 1117 of 1989. While remanding the matter, this Court permitted the petitioner-defendant No. 1 to file a counter and the lower Court was directed to consider the contentions raised by the petitioner-defendant No. 1 and pass orders according to law.

Though Order XXIII Rule 1 does not specifically contemplate a direction to the parties to restore the amenities which accrued to such party by virtue of an interim order, yet it is to be examined by the Court while permitting the party to withdraw the suit filed by him as to the advantage and disadvantage, a party is placed by permitting such party to withdraw the suit. It is needless to say that the petition was filed under Order XXIII Rule 1 read with Section 151 of C.P.C. The prayer sought for in the petition also includes "the Hon''ble Court be pleased to pass such other order or orders as the Hon''ble Court deems fit and proper in the circumstances of the case". When once this prayer is made in the petition accompanying the affidavit, the Court has to take into account the entire background of the case and has to consider the other aspect as to the advantage a party would get if no condition is imposed.

The lower Court while disposing of I.A.No. 133 of 1989 has permitted the first respondent-plaintiff to withdraw the suit by imposing the costs only. However, the lower Court has failed to give specific direction on the question of restoration of the status of the property, as it stood prior to the obtaining interim injunction. The lower Court ought to have seen the entire crux of the matter and passed appropriate orders in the facts and circumstances of the case. This factor has to be considered by the Court while invoking the inherent power u/s 151 of C.P.C. The lower Court has failed to appreciate the issues properly and allowed the first respondent-plaintiff to enjoy the benefits which he obtained by virtue of the interim injunction, though he withdrew the suit. The inherent power vested in the Courts u/s 151 CPC makes it abundantly clear that "nothing in this code shall be deemed to limit or otherwise effect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." Therefore, to meet the ends of justice Courts have to make orders by invoking power vested in them u/s 151 C.P.C. In the circumstances, I am of the view that the lower Court has erred in allowing the advantage to the 1st respondent-plaintiff, even though he is not entitled to be placed in such a position once he withdraws the suit. Therefore, such advantage cannot be allowed to sustain.

Accordingly, the order impugned in this revisions is set aside and the matter is remitted back to the lower Court. The lower Court is directed to dispose of I.A.No. 133 of 1989 afresh in the light of the observations made by this Court here in above as well as the observation made in C.R.P.No. 1117 of 1989, by giving notices to the parties concerned and fixing a date of hearing of the case and thereafter pass orders in accordance with law within three months from the date of receipt of a copy of this order.

Sri Veerabhadra Rao placed reliance on decision of a Division Bench of this Court in V. Ramakrishna Vs. Smt. N. Sarojini and others, and submitted that this Court can now pass an order withdrawing the advantage granted to the first respondent-plaintiff by way of interim order. I am afraid, I am not deciding a matter as an appellate authority u/s XLI Rule 33 CPC or deciding a Letters Patent Appeal. The Revision Petition is filed u/s 115 CPC and, therefore, I am aware of the limited scope of this petition. Taking all these aspects into consideration, I am remitting the matter to the lower Court to pass appropriate order, in order to meet the ends of justice.

The C.R.P. is accordingly allowed no order to costs.