Sulakhan Singh vs Daljit Singh and Others

S.D. Bajaj, J.—Alleging themselves to be tenants in 10 Bighas 16 Biswas of agricultural land belonging to Sulakhan Singh Petitioner Respondent Nos. 1 and 2 filed against him and his mother Smt. Iqbal Kaur civil suit No. 477 on 15th June, 1983 for permanent injunction restraining them from interfering with their peaceful possession of and enjoyment over the agricultural land aforesaid. Shingara Singh father of Respondent Nos. 1 and 2 was impleaded as proforma Defendant therein. Learned trial court reached the conclusion that Shingara Singh was mortgagee of the land and that Respondent Nos. 1 & 2 had been cultivating the land as sons of the mortgagee and not as tenants under the Petitioner. Suit filed by them was accordingly dismissed by the learned trial court on 28th August, 1986.

In appeal, filed by Respondent Nos. 1 and 2 learned Additional District Judge, Patiala allowed them to withdraw the suit without opportunity to file fresh one on the same cause of action. Ins spite of it, Respondent Nos. 1 and 2 have filed before the learned trial court a fresh suit Annexure P.2 to the present Civil Revision and have moved application Annexure P. 1 for the grant of adinterim injunction.

I have heard Shri T.S. Mangat, Advocate, for the Petitioner and Shri A.K. Ahluwalia, Advocate, for the Respondent Nos. 1 and 2 and have carefully perused the record.

Basing his claim on the observations made in Jubedan Begum and Others Vs. Sekhawat Ali Khan, learned Counsel for the Petitioner urged that the learned court of first appeal had erred while allowing Respondent Nos. 1 and 2 to withdraw their suit. Relevant observations read, "After hearing the learned Counsel for the parties, I am of the considered view that the lower Appellate Court has acted illegally in allowing the Plaintiff to withdraw the suit after setting aside the judgment and decree of the trial Court dismissing the suit. 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.

Learned Counsel for Respondents Nos. 1 and 2, on the other hand, referred this Court to observations made in Mohinder Singh and Ors. v. Babu Singh and Anr. (1985) 88 PLR 609 and urged that the learned court of first appeal had the power not only to allow withdrawal but could also grant him the permission to file fresh suit on the same cause of action, and, therefore, its assailed order dated 15th September, 1987 is in every way legal. It is clearly stated in the authority cited that it was on the peculiar facts of the particular case under consideration that permission to file fresh suit on the same cause of action could be granted. It was also observed that ordinarily a Plaintiff cannot be allowed to withdraw his suit at the belated stage nor the withdrawal of suit at this stage is his absolute right. The authority cited, therefore, does not help Respondent Nos. 1 and 2.

In respectful agreement with the observations made in the case of Jubedan Begum (supra), Civil Revision No. 3821 of 1987 is allowed and the assailed order dated 15th September, 1987 of learned Additional District Judge, Patiala, is set aside. Both the parties have been directed to appear before the learned Additional District Judge, Patiala, on 25th July, 1988, who shall proceed to decide the appeal on merits after hearing the learned Counsel for both the parties.