Sukdev Matla vs Haripada Dulai

Abani Mohan Sinha, J.—This Revision is directed against the judgment and order passed by the learned District Judge, Midnapore, in Title Appeal No. 230 of 1987. The revisionist claimed to have purchased the disputed property for a consideration of Rs. 1,600 (Rupees one thousand and six hundred only) by a registered sale deed dated August 12, 1975. The sale deed was backed by another deed which contained a condition of re conveyance of the suit property in favour of the vendor and that a sum of Rs. 1,100 (Rupees one thousand and one hundred only) was shown as interest and the principal sum was shown to be Rs. 500 (Rupees five hundred only). The two sums after addition was shown to be Rs. 1,600 (Rupees one thousand and six hundred only) as the total consideration for the re-transfer. The vendor as Plaintiff brought a suit being Title Suit No. 231 of 1980 in the Court of the Second Munsif, Midnapore, for a declaration that the transaction, in fact, was a loan or loan in substance. The purchaser entered appearance in that suit as a Defendant and contested it. The learned Munsif on the basis of evidence adduced by the parties came to a finding that the transaction was out and out a sale and not a loan or loan in substance.

Accordingly, he dismissed the suit of the Plaintiff. The Plaintiff preferred, an appeal against the judgment and decree of dismissal. While the appeal was pending, the Plaintiff, the present revisionist, filed an application under Order 23 Rule 1 of the CPC for withdrawal of the suit contending that there was a formal defect in the pleadings as he had only prayed for declaration as to the transaction in question and that he omitted to proceed for his relief under the provisions of Bengal Money Lenders Act. It was further contended that in the presence of such formal defect the suit should not be proceeded with and he would suffer an irreparable injury. Accordingly, he prayed for permission in the appellate Court for withdrawal of the suit with liberty to bring fresh proceedings on the same cause of action under the provisions of Bengal Money Lenders Act. The learned District Judge in appeal was satisfied that there was some formal defect in the proceedings and, accordingly, he allowed the application for withdrawal of the suit and gave the Plaintiff/Appellant permission to sue afresh on the same cause of action. Being aggrieved by such judgment and order, the Respondent, Defendant in the main suit, has come up in Revision before this Court.

I have heard Mr. Mukherjee, representing the revisionist and Mr. Sahoo for the opposite party. It has been contended by Mr. Mukherjee that the impugned order suffers from infirmity in the sense that the Court should not have set aside the judgment and decree of dismissal passed in his favour by the trial Court and that the Court should have awarded some cost, as his client was dragged from the trial Court to the appellate Court until the prayer for withdrawal was made. The relevant provision for withdrawal appears in Order 23 Rule 1 of the Code of Civil Procedure. Sub-rule (3) of Rule 1 lays down that where the Court is satisfied that a suit must fail by reason of formal defect or that there are sufficient grounds for allowing the Plaintiff to institute a fresh suit on the. subject-matter of a suit of a part of 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 or such part of the claim. Sub-rule (4) of this Rule, of course, provides that the Court may award cost to the other side in case of withdrawal of the suit by the Plaintiff. So, I do not find any jurisdictional error in the order of the learned District Judge in allowing withdrawal of the suit by the Plaintiff, as such power can be exercised by the Court at any stage of the suit which includes the stages-trial to appeal. The grievance as to setting aside of the order of the judgment and decree of dismissal of the trial Court, it may be said, is of no substance. For withdrawal of a suit amounts to non-existence of the suit or proceedings. There cannot be a withdrawal of the suit and at the same time existence of a judgment and decree of the suit over the same subject-matter. Mr. Sahoo has referred to a decision in the case of Beniram and Others Vs. Gaind and Others, in support of this contention. The Supreme Court held that where non-pleading of a point may prove a technical impediment and may result in the dismissal of the appeal which may impede a fresh adjudication if a point is to be made, though belated, it is just and proper in the interest of justice to permit withdrawal of the suit with liberty to file a fresh suit on the same cause of, action.

The Supreme Court, of course, awarded a cost of Rs. 1,000 (Rupees one thousand only) in that particular case and made it a condition precedent to withdrawal of the suit. In the present case, there is indeed provision in the Bengal Money Lenders Act which provides for relief to an aggrieved party involved in a transaction of the nature which, though appeared to be sale ostensibly, was in substance a loan or a loan. In such a case the aggrieved vendor or affected parties may initiate a proceeding Under Sections 36 and 38 of the Bengal Money Lenders Act for re-opening such transactions and other appropriate reliefs regarding repayment and the conveyance of the property transferred under such transactions.

Mr. Mukherjee, learned Advocate representing the revisionist, has urged that the judgment and order of the learned District Judge in appeal suffers from certain legal infirmities. In the first place, he has pointed out that in the trial Court there was a finding against the Plaintiff that there was no evidence of relationship of money lender and borrower so as to attract the relief�s under the Bengal Money Lenders Act. Secondly, it has been urged that several issues were framed in the trial Court relating to the transaction. One of the issues was to the effect if the deed in question was really a sale deed or deed with condition for re conveyance. There were also issues regarding the bar of provision of Bengal Money Lenders Act and competency of the Plaintiff to get relief of accounting or any other relief�s in the suit. The learned Munsif unlimitedly disposed of the issues in question against the Plaintiff. But he held that since the suit was not maintainable in its present form and prayer, the suit should fail. Accordingly, he dismissed the suit. It has strenuously been urged by Mr. Mukherjee that in the presence of this finding the appellate Court was not justified in passing the impugned order allowing withdrawal of the suit by the Plaintiff. The appellate Court should have considered the findings on merits and before according permission for withdrawal it should have set aside or reversed the findings on the material issues raised in the suit. Mr. Mukherjee in support of his contention has relied on a Single Bench decision of our High Court, Indradeo Jadav v. Golam Ghaus and Ors. AIR 1988 C.L.J. 309 which lays down: so long the finding of the trial Court is not set aside by the appellate Court the finding of the trial Court remains in force and the party in whose favour such finding was made certainly acquires an advantage and/or vested right on the strength of such finding. A party should not be granted leave to withdraw the suit with liberty to sue afresh on the same cause of action if the real dispute between the parties can be adjudicated in the suit already filed by him by making necessary amendments, if permissible in law. It adds that merely because there was a formal defect, permission to withdraw the suit with liberty to sue afresh on the same cause of action by the appellate Court will not be justified. The learned Judge relied on the Supreme Court decision, R. Ramamurthi Iyer Vs. Raja V. Rajeswara Rao, wherein it was held that if any vested fight comes into existence before the prayer of withdrawal is made, the Court is not bound to allow withdrawal. Though there is force in the argument of. Mr. Mukherjee, this decision is not attracted to the facts of the present case. In the present case, the trial Court did not make any specific or clear-cut finding on the issues raised in the suit. He merely recorded that he was inclined to dispose of the issues, in question against the Plaintiff. What is required of the Court is not to dispose of the issues raised in a suit, but to give a decision on the issues so as to arrive at a conclusion in the judgment, either allowing the relief�s claimed in full or in part or by dismissing the same in full or in part. The decision on the issues must lead to a conclusion in the form of decree allowing relief�s or in the form of a decree for dismissal of the relief�s. On going through the judgment carefully, I find that the learned Munsif persuaded himself to dismiss the suit on the finding that the suit was not maintainable in its form and prayer and that the suit could not be treated as one u/s 38 of the Bengal Money Lenders Act, in view of the restrictions contained in Section 91 or 92 of the Evidence Act as to leading of evidence extraneous to a written document. He has also found that the suit was not a proceeding u/s 36 of the Bengal Money Lenders Act. He further found that the provision of Sub-Section (6) of Section 40 of the said Act provides for adducing of oral evidence in a proceeding u/s 36 of the Bengal Money Lenders Act notwithstanding restrictions contained in the Evidence Act relating to a written document is not attracted in the present case. The judgment of the trial Court, in my view, clearly reveals that he found defects in the framing of the suit and, accordingly, dismissed the suit as not maintainable.

An appeal was taken from that decision. During the pendency of the appeal, the Plaintiff placed before the appellate Court an application for withdrawal of the suit under Order 23 Rule 3 of the Code of Civil Procedure. The appellate Court, in fact, found those defects in the pleadings of the Plaintiff. According to him, those were formal defects in the suit and, as such, the permission for withdrawal, as sought for by the Appellant, should be granted. There was no finding on the merits by the trial Court as to the nature of the transaction. So, it was not necessary on the part of the appellate Court to examine such finding and to give a decision on merits. He simply accepted the findings of the learned Munsif that the suit suffered from formal defects. In such facts and circumstances, he could not maintain the, findings of non-maintainability of the suit on account of formal defects and, at the same time, allowed the application for withdrawal of the suit to bring a fresh suit or proceeding after removal of the formal defects. So, he was quite right in setting aside the findings of the trial Court on the point of maintainability and allowing the Plaintiff an opportunity to bring a suit in an appropriate manner under appropriate law claiming appropriate relief�s. There was no acquisition of vested right by the Defendant on the strength of the judgment, as contended by Mr. Mukherjee. The property was already sold to the Defendant the Plaintiff wanted to challenge such sale pleading that it was really a loan or loan in substance, though it was ostensibly in form of a sale and to obtain relief�s under the Bengal Money Lenders Act. Whether he would get such relief or not, it has to be decided by the appropriate Court if any such proceeding is initiated. The provisions of Bengal Money Lenders Act are meant for the relief of the borrower, who entered into a transaction of sale being unable to procure money by way of loan. Whether such transaction was really a loan or sale, it is for the Court to decide entertaining such proceeding. The decision of the Supreme Court, which I cited earlier, supports the view I have taken that where there is defect in the pleadings or in the framing of the suit, the Court can, for the ends of justice, allow the application for withdrawal subject to payment of cost.

I have been informed by Mr. Mukherjee, learned Advocate for the revisionists, that already the Plaintiff started a proceeding under the Bengal Money Lenders Act for getting relief�s in respect of the transaction of sale. Mr. Sahoo on behalf of the opposite party is not in a position to inform the Court on this point. Be that as it may, I think that the ends of justice would be served if the opposite party/Plaintiff is directed to pay a cost of Rs. 200 (Rupees two hundred only) in order to proceed with the suit or proceeding which he might have brought in any Court. I find no merit in the Revisional application which shall stand dismissed, excepting that the Plaintiff would pay a cost of Rs. 200. (Rupees two hundred only) to proceed with any suit or proceeding which he might have brought in any Court or which he may bring in future. The order of the learned District Judge stands modified to this extent.

If any proceeding has been brought at all by the Plaintiff in this regard in any Court, it should be disposed of as early as possible.

The re visional application is thus disposed of with the modification indicated above.

There will be no order as to costs in this Court.

Let this order be communicated to the Court below forthwith.

Application disposed of with modification. S.C.