Haji P Abdul Rahiman v. K. P. Narayanan — 1996 DIGILAW 508 (KER)

ORDER K.A. Mohamed Shafi, J. 1. The defendants respondents in IA No. 1 70/96 in AS No. 4/94 in OS No. 329/92 of the Subordinate Judge's Court, Hosdurg are the revision petitioners. 2. The respondent filed OS No. 329/92 on the file of the Munsiff's Court, Hosdurg against the revision petitioners for permanent prohibitory injunction restraining them from constructing buildings in the plaint B schedule property without leaving an open space of 15 ft. from its northern boundary and in violation of the Kerala Building Rules, and for mandatory injunction to demolish the structures put up in the plaint schedule property. 3. The Munsiff's Court after trail dismissed the suit with costs by judgment dated 18.12.1993. The plaintiff respondent preferred AS 4/94 before the Subordinate Judge's Court, Hosdurg against that decree and judgment. Thereafter the respondent filed OP No. 1044/94 before this Court against the revision petitioner, the State of Kerala, the Commissioner of Hosdurg Municipality and the Station House Officer, Hosdurg Police Station, to issue a wit of mandamus directing the respondents therein not to proceed with the construction work. CMP No. 1866/94 filed by the respondent in that OP for an order of temporary injunction restraining the revision petitioners from proceeding with the construction work was dismissed by this Court by order dated 6.4.1994. Then Writ Appeal No. 851/94 was filed against that order. It was dismissed as withdrawn by judgment dated 27.7.1994. The OP is still pending before this Court. 4. After the withdrawal of the Writ Appeal the respondent filed IA 170/96 in AS 4/94 before the Subordinate Judge's Court for permission to withdraw the suit OS 329/92 and the appeal AS 4/94 with liberty to file fresh suit against the revision petitioners and the Kanhangad Municipality. The lower Court allowed that petition and permitted the respondent to withdraw the appeal and the suit with liberty to file a fresh suit against the revision petitioners and the Kanhangad Municipality, by order dated 26.3.1996. That order is under challenge in this revision petition. 5. The lower Court allowed that petition and permitted the respondent to withdraw the appeal and the suit with liberty to file a fresh suit against the revision petitioners and the Kanhangad Municipality, by order dated 26.3.1996. That order is under challenge in this revision petition. 5. O.23 R.1 of CPC gives discretion to the Court to grant permission to the plaintiff 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 when the Court is satisfied that the suit must fail by reason of the some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of the claim. 6. In this case after considering the contentions raised by the revision petitioners and the respondent the lower Court passed the impugned order allowing the respondent to withdraw the suit and the appeal with liberty to institute a fresh suit against the revision petitioners and the Kanhangad Municipality on the same cause of action. 7. It is well settled that the appellate Court is competent to grant permission to withdraw the suit under O.23 R.1 of CPC since an appeal is continuation of the suit. Therefore, the competency and jurisdiction of the appellate Court in this case to grant permission to withdraw the suit under O.23 R.1 of CPC cannot be questioned. 8. The revision petitioners have contended that the trail Court found against the plaintiff respondent herein on all the issues and dismissed the suit with costs after finding that the plaintiff has not come to the Court with clean hands and therefore, the appellate Court is not at all justified in allowing the respondent to withdraw the suit with liberty to file fresh suit for the subject matter on the very same cause of action. According to them, there was absolutely no material on record to have a judicial satisfaction that there are sufficient grounds to permit withdrawal of the suit and the appeal with liberty to file fresh suit on the same cause of action. 9. According to them, there was absolutely no material on record to have a judicial satisfaction that there are sufficient grounds to permit withdrawal of the suit and the appeal with liberty to file fresh suit on the same cause of action. 9. For permitting the respondent to withdraw the appeal and the suit with liberty to file fresh suit on the same cause of action, the lower Court has placed reliance upon the decision in Amminikutty v. George Abraham ( 1987 (1) KLT 574 ) wherein a single Judge of this Court has observed as follows: "The Rule empowers a Court to permit withdrawal when it is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit. Obviously, it is for the Court granting permission to get itself satisfied about the sufficiency of grounds; and what is more important is that the grounds must be relevant for institution of a fresh suit. The reference to the satisfaction of the Court, the need to obtain permission from it, the circumstances under which grant of permission is contemplated, and that it is granted with liberty to institute a fresh suit, all indicate that in appropriate cases, the Court will have the discretion to permit withdrawal of the suit itself, instead of compelling the plaintiff/appellant to carry his appeal to its logical conclusion. The Court can grant permission when it finds that it is necessary for advancing the cause of injustice; it can withhold it, in other cases." 10. The revision petitioners vehemently contended that the facts and circumstances available in the above reported case and in this case are entirely different and while there were sufficient materials for the satisfaction of the Court to permit withdrawal of the suit with liberty to file fresh suit on the same cause of action in that reported case, no such facts and circumstances is available in this case. In that reported judgment it is observed as follows: "In the present case what the petitioners (defendants in the suit) want is to take advantage of the mistake of the plaintiff in failing to sue for declaration of title, and probably also of the unnecessary digression made by the Court into question of title in an injunction suit; and it is therefore difficult to conclude that the District Court has exercised its discretion except for the purpose of doing justice." 11. In this case the suit filed by the respondent for permanent prohibitory injunction and mandatory injunction against the revision petitioners claiming easement right of light and air and also non compliance of building rules is dismissed by the trial Court. Even though the OP filed by the respondent claiming the very same reliefs before this Court is pending disposal, the CMP filed for temporary injunction is dismissed and the Writ Appeal preferred against that order is also dismissed as withdrawn. The Municipality which issued the licence approving the plan is not a party to the suit and while allowing withdrawal of the appeal and the suit filed by the respondent against the revision petitioners, the Court has given liberty to file a fresh suit impleading the Municipality also. Therefore, the facts and circumstances obtaining in that reported decision and in the above suit are entirely different and hence the decision reported in 1987 (1) KLT 574 has no application to the facts and circumstances of this case. 12. The counsel for the revision petitioners vehemently argued that a vested right cannot be divested by allowing withdrawal of the suit. He also argued that the respondent after having invited a decision adverse to him, cannot be allowed to withdraw the suit against the revision petitioners at the appellate stage. In support of the contention that a vested right obtained by the revision petitioners by the dismissal of the suit filed by the respondent against them cannot be divested by permitting the respondent to file a fresh suit on the very same cause of action, the counsel for the revision petitioners relied upon a large number of decisions including the decisions in V. Dube v. Har Charan (AIR 1971 Allahabad 41), Kanhaiya v. Dhaneshwari (AIR 1973 Allahabad 212) and Ram Dhan v. Jagat Prasad (AIR 1982 Rajasthan 235). 13. There cannot be any dispute with regard to the proposition of law enunciated in the above decisions. But the question to be considered is whether there were sufficient grounds in this case for the satisfaction of the Court to permit withdrawal of the suit and the appeal with liberty to file a fresh suit as provided under O.23 R.1 CPC. 14. But the question to be considered is whether there were sufficient grounds in this case for the satisfaction of the Court to permit withdrawal of the suit and the appeal with liberty to file a fresh suit as provided under O.23 R.1 CPC. 14. It is clear from the provisions of O.23 R.1 of C.P.C. that the discretion vested in the Court to permit withdrawal of the suit with liberty to institute fresh suit on the very same cause of action even at the appellate stage is based on the principles of public policy and not on the principles of res judicata. While evaluating whether there is sufficient ground to grant permission to withdraw the suit with liberty to file fresh suit on the very same cause of action the Courts of law should see that the provision under O.23 R.1 of C.P.C. is not made a weapon in the hands of cantankerous litigant to harass the opposite party by abusing the process of law. It in fact, under O.23 R.1(3) the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action, then only discretion is vested in Court to permit to withdraw the suit or any portion of the claim thereof. It is pertinent to note that when the suit is allowed to be withdrawn with liberty to file fresh suit on the same cause of action, the parties are relegated to the position before the institution of the suit and the effect of the decree, if any, passed against the plaintiff is erased by granting such permission. It is also settled law that the appellate Courts will be slow and discrete in granting permission to the plaintiff to withdraw the suit since such permission to withdraw the suit should not work out injustice to the opposite party and deprive them of the benefits derived by them in the judgment and decree invited by the plaintiff from the Court of law against him at the appellate stage. 15. In this case as already noted the trial Court dismissed the spit filed by the respondent after negativing the easement right of light and air claimed by him and violation of building rules. 15. In this case as already noted the trial Court dismissed the spit filed by the respondent after negativing the easement right of light and air claimed by him and violation of building rules. His attempt to get temporary injunction against the revision petitioners by filing an OP before this Court and moving a CMP in the OP after the dismissal of the suit also did not succeed since the CMP was dismissed and the Writ Appeal filed by him against the order in the CMP is dismissed as withdrawn, though the OP is pending before this Court. Apart from the fact that the easement right claimed by the respondent is found against by the trial Court and the Municipality which is the competent authority to grant the licence and approve the plan for construction of the building, was not a party to the suit, there is absolutely nothing in this case to indicate that there was any formal defect in the suit or any other cogent and acceptable ground to allow the respondent to withdraw the suit with liberty to institute a fresh suit on the very same cause of action. It is also pertinent to note that if the revision petitioners have constructed the building against the building rules or any other law, anybody is entitled to institute a suit against the revision petitioners and the Municipality and for that purpose no permission of the Court is necessary. 16. From the facts and circumstances of the case it is clear that absolutely no ground is made out by the respondent for permission to withdraw the suit with liberty to institute a fresh suit on the very same cause of action against the revision petitioners and the Municipality which is not even a party to the suit. Therefore, the permission granted by the lower Court to withdraw the suit with liberty to institute fresh suit on the very same cause of action against the revision petitioners and the Municipality is absolutely illegal and unsustainable. But in view of the provisions of O.23 R.1(1) of CPC the plaintiff is entitled to abandon his suit or any part of the claim at any stage of the suit. Therefore, the withdrawal of the suit simpliciter by the respondent as provided under O.23 R.1 of CPC is valid. 17. But in view of the provisions of O.23 R.1(1) of CPC the plaintiff is entitled to abandon his suit or any part of the claim at any stage of the suit. Therefore, the withdrawal of the suit simpliciter by the respondent as provided under O.23 R.1 of CPC is valid. 17. In this case the revision petitioners have vehemently contended that they have filed a cross objection against certain adverse findings entered by the trial Court against them in the above appeal and irrespective of the withdrawal of the suit by the respondent plaintiff the lower Court is bound to hear and dispose of the cross objection on merits in accordance with law. It is well settled that withdrawal of a suit will not affect the cross objection and the cross objection should be heard and disposed of by the appellate Court on merits in accordance with law. 18. In the decision in Arjan Singh v. Mohan Singh (AIR 1961 Punjab 287) a Division Bench of the Punjab High Court held that in spite of withdrawal of the appeal the cross objection should be considered by the appellate Court and disposed of on merits. 19. In the decision in Nanoo Gopinathan v. Neelacantan Balakrishnan ( 1989 (2) KLJ 775 ) this Court observed as follows: "O.41 R.22(4) specifically provides that where in any case in which any respondent has filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. When an appeal is dismissed for default or withdrawn the fate of the cross objection is not sealed thereby. Even when an appeal is withdrawn or dismissed for default the Court has to hear the cross objection and dispose of it in accordance with law." 20. Therefore, it is clear that in spite of the dismissal of the appeal and the suit as withdrawn, the lower appellate Court has to hear and dispose of the cross objection on merits in accordance with law. 21. Hence this revision petition is allowed. Therefore, it is clear that in spite of the dismissal of the appeal and the suit as withdrawn, the lower appellate Court has to hear and dispose of the cross objection on merits in accordance with law. 21. Hence this revision petition is allowed. The impugned order passed by the lower appellate Court granting permission to withdraw the appeal and the suit with liberty to file fresh suit on the very same cause of action against the revision petitioners and the Municipality is set aside and the appeal and the suit are permitted to be withdrawn as provided under O.23 R.1(1) of CPC The lower appellate Court is also directed to hear and dispose of the cross objection filed by the revision petitioners on merits in accordance with law irrespective of the withdrawal of the suit.