Pargat Singh vs Nachhattar Singh and others

R.L. Anand, J.—This is a civil revision filed by Pargat Singh and has been directed against the order dated 23.9.1999 passed by the Addl. Distt. Judge, Fatehgarh Sahib, who allowed the application of the Plaintiff-Appellant under Order 23, Rule 1, CPC, and granted him the permission to withdraw the suit unconditionally mainly on the ground that the appeal is in continuation of the original proceedings.

Some facts, in brief, can be noticed in the following manner:

Nachhattar Singh, Plaintiff, filed a suit against Pargat Singh and Daroga Singh for the declaration to the effect that he is the owner and in possession of the land mentioned in the head note of the plaint and that the Defendants have no connection with the suit land and the decree passed in suit No. 724 of 22.10.1977 decided on 22.10.1977 obtained by the Defendants against the Plaintiff is result of fraud and is not binding upon the Plaintiff and is nullity and is null and void. The Plaintiff also prayed for permanent injunction restraining the Defendants from interfering in his possession over the land in question.

The suit was contested by the Defendants. According to the Defendants, they paid money as per their shares to the Plaintiff and purchased the property in question. The decree dated 22.10.1977 is perfectly legal and no fraud or misrepresentation has been played upon the Plaintiff. The Defendants also took the objection that the suit of the Plaintiff is barred u/s 11 of the CPC. Similar suit No. 147 of 4.5.1981, which was between the parties and with regard to the same property, was dismissed on 11.12.1982 by the Sub Judge 1st Class, Fatehgarh Sahib. The suit is also barred by time. With these broad defenses, the Defendants prayed for the dismissal of the suit.

From the pleadings of the parties, the trial court framed the following issues:

Whether the decree in suit No. 724 dated 22.10.1977 decided on 22.10.1977 is illegal null and void? OPP

Whether the Plaintiff entitled to declaration and injunction as prayed for? OPP

Whether the suit is barred u/s 11 CPC? OPD

3A. Whether there was compromise between the parties on 3.11.1986? If so, to what effect? OPA

3B. Whether the suit is barred and not maintainable as pleaded in para 16 of the written statement?

Relief.

The parties led evidence in support of their case and, finally, issue No. 1 was decided against the Plaintiff and in favour of the Defendants and decree dated 22.10.1977 was held to be valid. Issues No. 3, 3A and 3B were also decided against the Plaintiff and in favour of the Defendants. Resultantly, vide judgment and decree dated 11.2.1993, the suit of the Plaintiff was dismissed.

Aggrieved by the judgment and decree, the Plaintiff filed an appeal before the court of the Addl. Distt. Judge, Fetehgarh Sahib and during the pendency of the appeal an application under Order 23, Rule 1, CPC, was filed by the Plaintiff. This application was contested by the Respondent (now Petitioners) on the ground that in case the suit and the appeal are allowed to be withdrawn, then, Nachhattar Singh should be burdened with heavy costs as the Defendants had been harassed for the last 12 years. The learned Addl. Distt. Judge, Fatehgarh Sahib, allowed the said application for the reasons, which read as under:

After hearing the learned Counsel for the parties, and having perused the records of the case and the authority cited by the counsel for the Appellants, I am of the opinion that permission to withdraw the suit has to be granted to the Plaintiffs in terms of the Order 23 Rule 1 CPC. As per the provisions of Order 23 Rule 1 Code of CPC give an unqualified right to the Plaintiff to withdraw the suit filed by him.

Accordingly, I allow the application and permit the Plaintiff to withdraw the suit. Consequently, the suit is hereby dismissed as withdrawn. Since the appeal is in continuation of the original proceedings, therefore, the judgment passed by the trial court will follow suit. Since the Defendants-Respondents have been dragged in litigation for many years, therefore, the Appellant can be burdened with costs. Therefore, they are burdened with costs to the tune of Rs. 5,000/-.

Aggrieved by the order dated 23.9.1999, the present revision by the Defendants.

I have heard the counsel for the parties and with their assistance have gone through the record of this case.

As per Order 23, Rule 1, CPC, which deals with withdrawal of suit or abandonment of part of claim, at any time after the institution of a suit, the Plaintiff may as against all or any of the Defendants abandon his suit of abandon a part of his claim. According to Order 23, Rule 4, CPC, where a Plaintiff abandons any suit or part of claim under Sub-rule (1), or withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

Thus, a reading of the above would show that after the institution of the suit, at any time, the Plaintiff has an unqualified right to withdraw or abandon his suit or part of his claim against all or any of the Defendants but consequences of such unconditional withdrawal or abandonment are mentioned in Sub-rule (4) which precludes such Plaintiff from institution any fresh suit in respect of such subject matter or such part of the claim. Further, it will be proper for me to refer to the provisions of Sub-rule (3) of Order 23, according to which, the court has the power to give permission to the Plaintiff to withdraw the suit with liberty to file a fresh one on the same case of action in respect of the subject matter of such suit or such part of the claim. Before the permission is granted, it is the duty of the court to satisfy that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the Plaintiff to institute a fresh such for the sub-matter of such suit or such part of the claim. The Court has also the power to impose costs, etc.

In the present case, the permission has not been granted to the Plaintiff to file a fresh suit on the same cause of action under Order 23 Rule 3, CPC. The application of the Plaintiff has been allowed under Order 23, Rule 1, CPC, and the Plaintiff will always suffer the consequences as envisaged under Order 23 Rule 4, which I have quoted above.

The grouse of the counsel for the Petitioner is that by the judgment and decree of the trial court, certain rights of the parties have been determined and a valuable right has accrued to the Defendants and if the Plaintiff is allowed to withdraw the-suit at the appellate stage, it will have the effect of nullifying the judgment and decree dated 11.2.1993, passed by the Sub Judge 1st Class, Fatehgarh Sahib, who dismissed the suit of the Plaintiff. Further, the grouse is that the suit could be withdrawn by the Plaintiff before the trial Court before the passing of the final judgment or decree but the moment the judgment and decree has been passed by the trial court and the suit of the Plaintiff has been dismissed, there is adjudication of the rights of the parties in favour of the Defendants and, in these circumstances, the permission could not and should not have been granted by the first appellate court to withdraw the suit even unconditionally. In support of his contention, counsel for the Petitioner relied upon Sulakhan Singh v. Daljit Singh and others , (1988) 94 P.L.R. 200 , wherein it was held as follows:

The words ''at any time'' in Rule 1 of Order 23 of the Code would apply to the suit pending in the trial Court. Once the decree is passed by the trial Court, then certain rights are vested in the party in whose favour the suit is decided. Thus, the Plaintiff is not entitled to withdraw the suit, as a matter of course, at any time after the decree is passed by the trial court.

The counsel for the Petitioner also relied upon Gian Chand and Anr. v. Pavi-tar Singh, 1994 (1) CCC 145, Jubedan Begum and Others Vs. Sekhawat Ali Khan, and K.S. Bhoopathy and Others Vs. Kokila and Others, .

On the contrary counsel for the Respondent relied upon a judgment of this Court reported in Satish Bhardwaj v. Dhani Ram and others, (1998) PLR 119 , and submitted that since the appeal is in continuation of the suit, therefore, the Plaintiff can withdraw his suit at any stage. Moreover, in this case, permission has not been granted to the Plaintiff to file a fresh suit on the same cause of action. In this judgment, reliance was also placed on the judgments reported in State of Maharashtra Vs. Dr. R.B. Chowdhary and Others, , Ammini Kutty and Others Vs. George Abraham, and Dinabandhu Sahoo Vs. Budhi Debi (dead) (and after her) Narasingh Parida, .

In Executive Officer, Arthaneswarar Temple v. R. Sathyamoorthy and others , JT 1991(1) SC 343, the Hon''ble Supreme Court was pleased to hold as follows:

Various High Courts have rightly held, while dealing with applications under Order XXIII Rule 1 CPC, that if an appeal was preferred by an unsuccessful Plaintiff against the judgment of the trial court dismissing the suit and if the Appellant-Plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so for as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the Defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial court in favour of the Defendant would get nullified, such permission for withdrawal of the suit should not be granted.

In the present case also, the first appellate court has not nullified any findings of the trial court. Rather, it has simply given the permission to the Plaintiff to withdraw the suit. In the impugned order, the learned Addl. Distt. Judge, has nowhere remarked that the findings of the trial court on various issues shall also stand evaporated and this Court also observes that the findings given by the trial court in dismissing the suit of the Plaintiff against him shall remain as it is. If the Plaintiff has unconditionally withdrawn his suit under Order 23, Rule 1, CPC, consequences are writ large as envisaged under Order 23, Rule 4 CPC. There would have been some merit in the contentions of the counsel for the Petitioner, had the court of Addl. Distt. Judge made any observations that the findings of the trial court are hereby reversed or nullified or the same will not operate as bar against the Plaintiff. In the absence of such observations, i do not see any illegality in the impugned order.

Resultantly, the revision stands disposed of in the light of the observations made above with on order as to costs.