Mohinder Singh and other vs Babu Singh and another

J.V. Gupta, J.—This is plaintiffs'' second appeal whose suit for the grant of the permanent injunction restraining defendant No. 1, Babu Singh, their father, from alienating in any way the land to defendant No. 2 Mistri Shri Ram or any other person has been dismissed by both the Courts below.

The plaintiffs filed the suit against their father for the grant of the permanent injunction on the allegations that the suit property was the coparcenary property of the plaintiffs and their father Babu Singh and was inherited from their common ancestor. Thus, the said Babu Singh had no right to transfer the same without any legal necessity. Since he had effected an agreement to sell the suit land to defendant No. 2, the latter was also impleaded as a defendant to the suit. The suit was contested inter alia on the ground that the suit property was not coparcenary property, as alleged. The trial Court found that the suit property was not proved to be the ancestral or coparcenary property of the parties. Consequently, the suit was dismissed. In appeal, the learned District Judge affirmed the said finding of the trial Court and, thus, affirmed the decree dismissing the plaintiffs'' suit. However, while disposing of the appeal it was also observed :

It has been admitted by both the parties that during the pendency of this appeal, the sale of the land had already been effected. So, the suit by way of permanent injunction has become infructuous.

Dissatisfied with the same, the plaintiffs have filed this second appeal in this Court.

During the pendency of this appeal, the plaintiffs moved Civil Miscellaneous Application No. 2550-C of 1985 under Order XXIII rule 1, CPC (hereinafter called the Code), for the withdrawal of the plaint with permission to file afresh suit on the same cause of action.

Reply to the said application has been filed on behalf of Babu Singh, defendant-respondent.

The learned counsel for the appellants contended that since the suit is liable to be dismissed on the ground that it has become infructuous, as observed by the lower appellate Court as well and that it is a fit case where the plaintiff be allowed to withdraw the suit with permission to file a fresh suit on the same cause of action. The learned counsel further submitted that a part of the suit property has been sold during the pendency of the appeal and on that ground also, the suit for the grant of the permanent injunction has been rendered infructuous since the vendees are not the parties to the suit. The learned counsel also submitted that during the pendency of this appeal, a family settlement had been arrived at between the coparceners and thereby the whole complexion of the litigation has changed. Not only that, even a civil suit has been filed by the plaintiffs'' on the basis of the said family settlement which is pending in the trial Court. The permission to withdraw the suit, argued the learned counsel, could be allowed even at the appellate stage. In support of the contention, the learned counsel relied upon Suraj Pal Singh Vs. Sri Gharam Singh and Others, . On the other hand, the learned counsel for the defendants contended that the provisions of Order XXIII rule 1 of the Code as such were not attracted to the present case and, therefore, the plaintiffs'' could not be allowed to withdraw the suit at the stage of second appeal; particularly where concurrent findings have been given by the Courts below against them. According to the learned counsel, the rule of lis pendens would apply to the present case and, therefore, any sale, which has taken place during the pendency of the proceedings will be hit by it. Reliance in this behalf was placed on Jubedan Begum v. Sekhawat Ali Khan AIR 1982 P&H. 221, Ashok Kumar v Smt. Kala Devi 1984 P.L.J. 308. Vidhydhar Dube and Others Vs. Har Charan and Others, and Man Inder Kaur v. Jasmel Kaur (1975) 77 P.L.R. 60.

After hearing the learned counsel for the parties, in view of the peculiar circumstances of this case, I am of the considered view that it is a fit case where the plaintiffs should be allowed to withdraw the suit with permission to file a fresh suit on the same cause of action.

As observed earlier, even the lower appellate Court itself observed that the suit for the grant of the permanent injunction had become infructuous because a part of the property had been sold during the pendency of the suit. Admittedly, the vendees are not the parties to these proceedings and, therefore, any decree for permanent injunction would be of no consequence against the said vendees. Apart from that, a family settlement is alleged to have been arrived at between the coparceners on the basis of which the suit on behalf of the plaintiffs is said to be pending in the trial Court. Thus, in view of the peculiar facts of this case, I am of the considered opinion that a case is made out for the withdrawal of the suit by the plaintiffs with permission to file a fresh suit on the same cause of action. It may be mentioned here that ordinarily a plaintiff cannot be allowed to withdraw his suit at the appellate stage, nor the withdrawal of the suit at that stage is his absolute right. However, in none of the authorities relied upon by the learned counsel for the respondents, it has been held that there is absolute bar on the plaintiff at the appellate stage to withdraw the suit with permission to file a fresh suit on the same cause of. action. Thus, keeping in view the facts and circumstances of this case, the plaintiffs are allowed to withdraw the suit with permission to file a fresh suit on the same cause of action.

Consequently, the decrees of the Courts below are set aside. It has been stated at the bar on behalf of the plaintiffs that no suit shall be filed against defendant No. 2 Mistri Shri Ram son of Rikhi Ram challenging the sale made in his favour by Babu Singh, defendant. The Civil miscellaneous application stands allowed. No costs.