Ram Bilas vs IVth A.D.J. and Others

S.N. Srivastava, J.—Impugned herein is the order dated 30.11.1988, passed by the appellate court in Civil Appeal No. 141 of 1981 whereby the plaintiff was permitted to withdraw suit attended with permission to institute fresh suit with cost quantified at Rs. 300.

The dispute in the instant petition relates to the land adjoining khandhar in the east of plot Nos. 120 to 126, which according to the plaintiffs was being used as a public passage and which according to the defendants was sahan of his house and not public passage which he annexed to his house. The dispute escalated into institution of the suit, which the plaintiff filed for the relief of permanent injunction restraining the defendants from taking possession over the land in dispute. The plaintiffs'' case is that the land in dispute is ancestral property which is being used by plaintiffs'' ancestors much prior to date of vesting and defendant had no right to open new rasta for ingress and egress. The cause of action, according to the plaintiffs arose on 1.7.1979, when defendant illegally and forcefully tried to interfere with the right and possession of plaintiffs. On the other hand, defendant denied the plaintiffs case stating that the land in dispute belonged to him from the time of his ancestors and that it was never in the khandhar but the same was always used as sahan and the land was being used for tying animals. Various other pleas were also raised by parties in aid of their respective case and thereafter, issues were framed and the suit culminated in being dismissed by means of judgment and decree dated 7.10.1983. It would further appear that the plaintiffs went up in appeal against the judgment of dismissal. During pendency of appeal, an application came to be filed by the plaintiffs seeking withdrawal of the suit mainly on three grounds; firstly, that in the original plaint map, length and breadth of the ''gali'' had not been shown, secondly, the spot position has been altered and it requires amendment in the plaint and thirdly, the Gaon Sabha was a necessary party. The appellate court allowed the application and permitted withdrawal of suit attended with liberty to file a fresh suit. It is in the above backdrop that the present petition has come to be filed.

Learned counsel for the petitioner-defendant canvassed that none of the ingredients of Order XXIII, Rule 1(3) of the C.P.C. were attracted for application which could warrant passing of the impugned order in appeal by the appellate court. It was further submitted that in appeal, permission to withdraw the suit maybe given in very rare cases and none of the grounds enumerated in the application makes out a case for passing of the impugned order by the appellate court. It was further submitted that Gaon Sabha was not a necessary party in case. The learned counsel also submitted that provisions of Order VI, Rule 17 C.P.C. did permit amendment of the pleadings at any stage, which may be considered necessary for the purposes of determining the veritable questions in controversy between the parties. Ultimately, it was submitted that right to withdraw a suit is not an absolute right inasmuch as it would impinge upon the rights of defendant acquired under the decree passed in suit and therefore, plaintiff appellant could be permitted to withdraw the appeal and not the suit. In connection with the above proposition, the learned counsel relied upon the decisions in Ganga Saran and Others Vs. Naryan Das, and R. Rathinavel Chettiar and Another Vs. V. Sivaraman and Others, . Per contra, Sri R. S. Asthana, learned counsel appearing for plaintiff respondents contended that the plaintiffs were compelled to seek withdrawal of suit owing to technical flaws and therefore, the application was rightly allowed. He further contended that grounds enumerated in the application to withdraw the suit were cogent and convincing making out a case for withdrawal of the suit. He finally contended that the impugned order is apt to be affirmed.

In the above perspective, the question that surfaces for consideration is whether the appellate court could permit withdrawal of suit in appeal with liberty to file fresh suit. In connection with the aforestated question, Order XXIII, Rule 1(3) may be referred to. It being germane to the controversy involved, Order XXIII, Rule 1(3) C.P.C. may be abstracted below.

"1. Withdrawal of suit or abandonment of part of claim.

1 (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."

Before proceeding with the analysis of the question involved in the instant petition, it would be appropriate to scan the impugned order passed by the appellate court.

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It is eloquent from the above quoted order that the appellate court has passed a cryptic order observing the provisions in letter without delving into its spirit. It has often been said that law is the bare bone and flesh is supplied by the judicial precedents. What are the conditions to be applied for passing the order of withdrawing suit at the appellate stage, have to be examined in the light of the precedents which have copiously been cited across the bar by both the sides.

In a decision in Vidhydhar Dube and Others Vs. Har Charan and Others, , it has been observed that the appellant may withdraw an appeal by equating word ''suit'', plaintiff and defendant flowing from Order XXIII, Rule 1 (1) of the Code with the word appeal, appellant and respondent, but he has no absolute right to withdraw suit. The Court was further of the view that a plaintiff can always withdraw from a suit even at appellate stage and appellate court has power to allow withdrawal under Order XXIII, Rule 1 even though appeal may be against the decision in the suit rendered by the trial court. The self-same view finds its echo in decisions of different High Courts including in Smt. Shakuntala Devi and Others Vs. Surinder Kumar and Others, and Bharat Bhushan Gupta v. Raj Kumar Gupta AIR 1994 Del 207 . The decisions in Inamati Mallappa Basappa Vs. Desai Basavaraj Ayyappa and Others, ; Kedar Nath and Others Vs. Chandra Kiran and Others, ; Kanhaiya and Others Vs. Mst. Dhaneshwari and Another, ; Kamta and Another Vs. Gaya Prasad and Others, and Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co., , also held good the self-same view.

Now the precise question that surfaces for consideration is whether appellate court could allow withdrawal application literally as a matter of course or it could pass order taking into reckoning certain aspects including the facets of vested and substantive rights if any accrued in favour of other parties. In Section 2(2) of the Code of Civil Procedure, word ''decree'' has been defined and it means that there must have been adjudication determining rights of the parties in respect of the matter in controversy. It thus bears no scrutiny that the determination must be conclusive which shall be the result of the adjudication and once a matter in determination has received judicial determination, the suit shall result in decree either in favour of plaintiff or defendant. In the above conspectus, it leaves no manner of doubt that if a matter is finally decided and rights of parties are determined in suit and unless decree is reversed, recalled, modified or set aside, the parties cannot be robbed of their rights accrued under the decree. The aspect as to what would be the consequence that would visit upon the defendant if application for withdrawal is allowed at the appellate stage. It would appear that the plaintiffs had instituted the suit for the relief of permanent injunction restraining defendants from taking possession over the land in dispute. The suit aforesaid culminates in dismissal. The necessary consequence that would flow from dismissal would be that rights over the land in question had been held good upon adjudication. If at the appellate stage, the suit is allowed to be withdrawn with liberty to file fresh suit, it would imply that the plaintiffs would have a second inning and the trial court would be required to have adjudication and determination of rights afresh. It would also result in nullifying the effects of determination whereby the rights of the parties have been determined. It would therefore appear that right to withdraw suit cannot be allowed as a matter of course unless there are very cogent and convincing reasons to show that withdrawal would not impinge upon the vested and substantive rights. This view is fully supported by paragraph-22 of the judgment of Apex Court in R. Rathinavel Chettiar and Another Vs. V. Sivaraman and Others, , which is being quoted bellow for ready reference :

"22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody''s vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained."

In the conspectus of the above discussion, it would appear that right to withdraw suit is hedged with certain conditions and the appellate court while permitting the plaintiff-appellants to withdraw the suit with liberty to file fresh suit has not taken into reckoning various aspects involved and has merely rushed to the conclusion that since appeal is continuation of suit, the plaintiff-appellants are permitted to withdraw the suit with liberty to file a fresh suit inasmuch as this course of reasoning would afford second inning to the plaintiff-appellants which have been adjudicated upon and determined by the trial court in suit while dismissing the suit. From perusal of the order passed by the appellate court it is clear that no reasons have been recorded by the lower appellate court while allowing application and permitting to withdraw suit at appellate stage. The order impugned suffers from manifest error of law apparent on the face of record,

In view of the above discussions, writ petition succeeds and is allowed. The impugned order dated 30.11.1988, passed by the appellate court is quashed and the appellate court is directed to decide the application for withdrawal of the suit afresh in accordance with law and in the light of the observations made in body of this judgment. In the facts and circumstances, the parties are directed to bear their respective costs.