M.S. Miganed Jaffar vs M.S. Mohamed Yahya and Another

Sathiadev, J.—Petitioner herein as plaintiff filed O.S. 4285 of 1977 before the IV Assistant Judge, City Civil Court Madras, for a

declaration that he is the sole mutavalli of the Wakf created by the Wakf deed dated 27-8-1924. Initially, he had impleaded only the first

defendant. Later on the second defendant was impleaded in I.A. 1649 of 1979. It is not in dispute that the second defendant is functioning as the

Receiver, during the pendency of the suit. He had also filed C.S. 736 of 1985 for a scheme to be framed in relation to this wakf, and it is pending

disposal. On being impleaded as second defendant, he had put forth a counter-claim relating to more than one aspect, as found in the amended

written statement and counter claim filed on 23-12-1980. It is thereafter, when the plaintiff sought for withdrawal of the suit, the second defendant

had filed I.A. 2803 of 1987 for transporting himself as plaintiff in the said suit. The trial court held that the plaintiff cannot withdraw the suit by

making an endorsement, and he has to file an application and had adjourned the same to 2-7-1987. It is against the said order this revision is

preferred by the plaintiff. The plaintiff being the dominus litus, has right to withdraw the suit, at any stage of the proceedings. This application filed

for transposition of the second defendant as plaintiff, appears to be meaningless, because he is not seeking for the reliefs as prayed for by the

plaintiff. The claims made by him in counter claims are totally different from what had been asked for by the plaintiff. Hence, by transposition it

would result in second defendant being put to a predicament, particularly when he had sought for the removal of the plaintiff in the counter claim.

Hence, this Court considers that the application filed for transposition runs counter to the counter claims put forth by him. On this score itself, the

trial Court ought to have dismissed that application.

As for the directive given by the court below that the plaintiff will have to file an application for withdrawing the suit, here again, there is a basic

error committed by it because no party to a proceeding can compel the plaintiff to continue the proceedings. It is for the plaintiff to withdraw the

suit whenever he likes, subject, of course to complying with certain requirements as provided in the Code of Civil Procedure.

In a suit in which counter claim had been filed, by virtue of the amendment now enacted by Amendment Act, 1976, under O.8 R.6-D, C.P.C.,

even if the suit is dismissed, the defendant can pursue the counter-claim put forth by him. By seeking the withdrawal of the suit, it results in the suit

being dismissed and inspite of it on the counterclaim already filed by the second defendant the court will nevertheless, proceed with that claim in

view of O.8 R.6-D, C.P.C. Hence the second defendant would not in any manner be prejudiced by the suit being allowed to be withdrawn,

because the resultant effect Will be the counter-claim made by the second defendant will be numbered as a suit and proceeded with further.

Second defendant appearing in person would state that there would be difficulty in the numbering of the counter claim by the court. The could be

no difficulty because, on what is provided under O.8 R.6-D C.P.C., what would happen is that the trial court will have to give a fresh number to

the counter claim put forth by the second defendant and treat it as a suit. He also refers to the decision in Basudeb Narayan Singh and Others Vs.

Shesh Narayan Singh and Others, , which takes the view that the plaintiff has a right under O.23 R.1 (i), C.P.C., to withdraw a suit at any stage,

but such a right of the plaintiff is limited to the extent that it does not result in defeating a right which has already vested in the defendant. In the

instant case, the right of the second defendant is based on O.8 R.6-D, C.P.C., by allowing the counter claim to be numbered as a separate suit,

with a fresh number, his right is not in any manner taken away, and in turn the counter claim is not affected by the suit being allowed to be

withdrawn. Hence, the revision petition is allowed, and it results in the plaintiff being permitted to withdraw the suit by making an endorsement on

the plaint that he is withdrawing the suit and then trial court will have to give a fresh number to the counter claim made by the second defendant and

treat it as a suit filed by him. No costs.