Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 353 (PNJ)

Nand Lal v. Bhim Sen

2000-03-28

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. Bim Sen son of Raunaq Ram filed suit for the recovery of Rs. 4,000/- against Nand Lal and Amrik Singh. He asked for mandatory injunction directing Amrik Singh to make payment of the rent of the shop to him situated at Twakli More, Sheranwala Gate, Patiala to the extent of 1/2 share i.e. Rs. 300/- per month with effect from July 1989. 2. It Was alleged in the plaint by Bhim Sen that he is owner to the extent of 1/2 share in the disputed shop. Nand Lal defendant is owner to the extent 1/2 share He (Plaintiff) is entitled to 1/2 share of the rent which Amrik Singh defendant is liable to pay. He (Bhim Sen) had mortgaged his share to the extent of 1/2 share to Amrik Singh defendant which was got redeemed on 23.7.87 and as such he is entitled to get rent to the extent of 1/2 share. Disputed shop is on rent with Amrik Singh at a rental of Rs. 300/- per month. He filed ejectment application against Amrik Singh in which he had pleaded that he had already made payment to Nand Lal for the period till April 1989. Nand Lal also failed to make payment to the extent of 1/2 sharel Rent for the period 23.6.87 to 23.6.89 @ 300/- per month totaling Rs. 7200/- because due and he is entitled to the extent of 1/2 share i.e. Rs. 3600/-. He is also entitled to interest @ 12% per annum. 3. Defendants contested the suit. It was denied that the plaintiff is owner of the disputed shop to the extent of 1/2 share. Jagan Nath and Nand Lal were owners of the disputed shop. Jagain Nath died issueless on 3.11.78. He had executed will in favour of Nand Lal on 8.10.78 Whereby he had bequeathed his 1/2 share in favour of Nand Lal. Nand Lal thus became exclusive owner of the disputed shop after the death of Jagan Nath. Plaintiff had no fight in the shop. He had no right to mortgage any part, of the shop to Amrik Singh. He had no right to redeem the shop. Shop in question was on rent with Amrik Singh at a rental of Rs. Nand Lal thus became exclusive owner of the disputed shop after the death of Jagan Nath. Plaintiff had no fight in the shop. He had no right to mortgage any part, of the shop to Amrik Singh. He had no right to redeem the shop. Shop in question was on rent with Amrik Singh at a rental of Rs. 300/- per month under Nand Lal and Jagan Nath deceased, it was urged that the plaintiff had no right to file ejectment application against Amrik Singh regarding this shop. Since plaintiff was not owner of the shop, he had no right to ask for rent. It was urged that Amrik Singh was occupying the shop as tenant under Nand Lal and Jagan Nath at a rental of Rs. 300/- per month. 4. Plaintiffs suit was dismissed by Civil Judge(Junior Division), Patiala vide order dated 30.4.96 in view of his finding that the plaintiff was not owner of the shop. Jagan Nath and Nand Lal were owners of the disputed shop in equal shares. After the death of Jagan Nath, Nand Lal became owner of the share of Jagan Nath on the basis of will Ex.DW4/1. Nand Lal became exclusive owner of the disputed shop. Plaintiff and Amrik Singh jointed hands to defeat the right of the defendant which resulted in redemption proceedings by the plaintiff, Redemption proceedings initiated by the plaintiff had no effect so far as the defendants are concerned. 5. Bhim Sen Went in appeal. In appeal, the plaintiff asked for permission to withdraw the suit with liberty to file fresh suit. Additional District Judge, Patiala permitted him to withdraw the suit with liberty to file fresh suit on the same cause of action and on different cause of action subject to payment of Rs. 15.0.0/- as costs: Additional District judge passed the following order:- " As the suit has been withdrawn, the appeal stands dismissed:" 6. Aggrieved from order dated 19.3.1998 passed by Additional District Judge. Patiala whereby he had permitted the plaintiff to withdraw the suit with liberty to file fresh suit on the same cause of action and on different cause of action subject to payment of Rs. 1500/- as costs, Nand Lal has come up in revision to this court. 7. Nand Lal, Bhim Sen and Jagan Nath mortgaged with possession this shop with Narata Ram through registered mortgage deed dated 12.7.49 for Rs. 1500/- as costs, Nand Lal has come up in revision to this court. 7. Nand Lal, Bhim Sen and Jagan Nath mortgaged with possession this shop with Narata Ram through registered mortgage deed dated 12.7.49 for Rs. 1800/- They created further mortgage in the sum of Rs 500/- oh this shop in favour of Narata Ram through mortgage deed dated 2,6.6.50. Narata Ram leased out the shop to Amrik Singh. Nand Lal instituted suit for redemption of the shop against Narata Ram and Amrik Singh on payment of Rs. 2300/- saying that this shop had fallen to his share in a private partition, that suit was contested by Amrik Singh who; expressed ignorance about the mortgage created, by Nand Lal, Jagan Nath and Bhim Sen with Narata Ram but admitted that he was, in possession of the shop as tenant. He asserted that Nand lal was not entitled to the physical possession of the shop. Later on the plaint was amended. In the amended plaint dated 12.7.71, it was pleaded that Nand Lal, Bhim Sen and Jagan Nath had created that two mortgages in favour of Narata Ram who was delivered possession of the shop and that mortgage could be redeemed any time after 5 years. It was further pleaded that Amrik Singh was in possession of the shop as tenant under Narata Ram. Nand Lal claimed that the shop had fallen to his share in a private partition and that he alone was entitled to redeem, in the alternative, it was pleaded that in case private partition was not proved, Nand Lal being one of the co-mortgagors was entitled to redeem whole of the mortgage. Amrik Singh in his written statement dated 4.8.71 did not dispute the mortgage created by Nand Lal, Bhim Sen and Jagan Nath on 12.7.49 and 26.6.50 for Rs. 2300/-. He admitted that he was in possession of the shop as tenant but asserted that Nand Lal was not entitled to the possession of the shop. Plea of partition was denied. It was pleaded the Bhim Sen one of the co-owners had mortgaged his share in favour of Amrik Singh for Rs. 3,000/- mortgage deed dated 6.4.71 and as such an objection was taken that Nand Lal could not get the property redeemed. Plea of partition was denied. It was pleaded the Bhim Sen one of the co-owners had mortgaged his share in favour of Amrik Singh for Rs. 3,000/- mortgage deed dated 6.4.71 and as such an objection was taken that Nand Lal could not get the property redeemed. Nand Lal took up the plea that the mortgage in favour of Amrik Singh had taken place during the pendency of the suit and as such could not affect his rights. He also denied that factum of through mortgage by Bhim Sen in favour of Amrik Singh. Additional Sub Judge Third Class. Patiala decreed the plaintiffs suit. Amrik Singh went in appeal which was dismissed by Additional District Judge, Patiala vide orders dated 28.5.75. Additional District Judge, Patiala passed the following order:- "In the result the appeal fails and is dismissed but in the circumstances of the case, the parties are left to bear their own costs of the appeal. It may, however, be added that Nand Lal will be holding the property to the extent of 1/3 share as an owner due to the merger of the mortgagee rights in the rights of ownership held by him and Nand Lal will be holding 1.3 share of Jagan Nath only for the purpose of reimbursement of the mortgage amount paid by him to the extent of the share of Jagan Nath and the remaining 1/3 share of the property will be held by him subject to the charge of mortgage created by Bhim Sen in favour of Amrik Singh appellant." 8. Learned counsel for the petitioner submitted that the Additional District Judge should not have allowed the plaintiff to withdraw the suit with permission to file fresh suit on the same cause of action or different cause of action as the suit had been dismissed by the trial court and there was only appeal before the appellate court. It was submitted that with the dismissal of the suit, the right had become accrued to the defendants and that right could not have been taken away by the appellate Court. It was submitted that the plaintiff had filed application for additional evidence. By way of additional evidence the plaintiff wanted to produce on record the judgment and decree passed by Additional Sub Judge Third Class, Patiala dated 7.5.73 to show that Nand Lal alone had got the shop redeemed from Narata Ram. It was submitted that the plaintiff had filed application for additional evidence. By way of additional evidence the plaintiff wanted to produce on record the judgment and decree passed by Additional Sub Judge Third Class, Patiala dated 7.5.73 to show that Nand Lal alone had got the shop redeemed from Narata Ram. It was held there that the shop was owned in equal shares by Nand Lal, Bhim Sen and Jagan Nath and they had mortgaged the same in favour of Narata Ram. That judgment was maintained in appeal by Additional District Judge, Patiala vide judgment and decree dated 28.5.75. Plaintiff sought to produce/prove the documents relating to that suit by way of additional evidence. It was submitted that the plaintiff will, instead of pressing his prayer for additional evidence, moved an application under Order 23 Rule 1 CPC for allowing him to withdraw the suit with liberty to file fresh suit on the same cause of action stating therein that suit was likely to fail due to lack of proper pleas and material documents and the facts relating to the earlier suit which had not been pleaded in the present suit. Learned Counsel for the petitioner submitted that the court could allow the plaintiff to withdraw the suit only if it was satisfied that the suit would fail by reason of some formal defect or that there were sufficient grounds for allowing the plaintiff to institute fresh suit for the subject matter of suit or part of a claim and permit him to withdraw that suit or such part of the claim with liberty to institute fresh suit in respect of the subject matter of that suit or part of the claim. It was submitted that there was no formal defect in the frame of the suit owing to which the suit was likely to fail. It was submitted that plaintiffs suit was dismissed because he had failed to prove that he was owner to the extent of 1/2 share of the shop. It was submitted that simply because the plaintiff could not put forth proper pleas and lead proper evidence, cannot be a factor, enabling the court to invoke the provisions of Order 23 Rule 1 CPC. In Gurnek Singh and Anr. It was submitted that simply because the plaintiff could not put forth proper pleas and lead proper evidence, cannot be a factor, enabling the court to invoke the provisions of Order 23 Rule 1 CPC. In Gurnek Singh and Anr. v. Gurbachan Singh and Ors., (1986-1)89 P.L.R. 309 it was held that very strong case has to be made out for allowing suit to be withdrawn at appellate stage. He also drew my attention to Sh. Guru Maharaj Anandpur Ashram Trust, Guna and Ors. v. Chander Parkash and Ors., (1986-1)89 P.L.R. 319 where it was held that once a decree is passed by the trial Court, certain rights are vested in party in whose favour the suit is decided. Thus the plaintiff is not entitled to withdraw the suit as a matter of course at anytime after the decree is passed by the trial court. If some new evidence had come into possession of the plaintiffs after the passing of the decree by the trial Court, they could seek permission for leading additional evidence for which an application had already been filed but that by itself was no ground to withdraw the suit." 9. Learned counsel for the respondents, on the other hand, submitted that the courts discretion to permit the plaintiff to withdraw suit with permission to file fresh suit in respect of the same subject matter is not hedged only by this condition that a suit must fail by reasons of some formal defect and only then permission to withdraw with liberty to file fresh suit can be given. Court can permit the withdrawal of the suit with liberty to file fresh suit regarding the same subject matter if there are sufficient grounds for allowing to withdraw that suit with permission to file fresh suit. In this case, he submitted that the facts are that Bhim Sen along with his real brother Nand Lal and uncle Jugan Nath son of Bansi Lal was owner of the shop in equal shares. On the death of Jagan Nath, his 1/3 share came to Nand Lal and Bhim Sen and both became owner to the extent of 1/2 share each and as such were entitled to receive rent in equal shares from Amrik Singh. Shop was mortgaged with possession by Nand Lal, Jagan Nath and Bhim Sen with Narata Ram vide mortgage deed dated 12.7.49 for a sum of Rs. 1800/-. Shop was mortgaged with possession by Nand Lal, Jagan Nath and Bhim Sen with Narata Ram vide mortgage deed dated 12.7.49 for a sum of Rs. 1800/-. It was further mortgaged with Narata Ram vide further mortgage deed dated 18.7.50 for a sum of Rs. 500/-. Nand Lal filed suit for redemption. Jagan Nath and Bhim Sen were also impleaded as defendant No. 3 and 4 in the said suit. Amrik Singh was also impleaded as defendant No. 2 in the suit. Suit was decreed on 7.5.73 and appeal was dismissed by Additional District Judge, Patiala on 28.5.75. Prior to the filing of the suit, notice dated 17.4.69 was got issued by all the three mortgagors to Narata Ram through their counsel Shri Mohan Lal, Advocate, Patiala. In that suit, Nand Lal raised plea of partition claiming ownership of the entire shop in dispute. It was held that Nand Lal being one of the mortgagors was entitled to redemption and accordingly the suit was decreed. It was also held that the shop was owned by Jagan Nath, Nand Lal and Bhim Sen. Finding on issue No. 1(B) framed in that suit operates as res judicata between the parties to this suit is the ground taken in an application under order 23 Rule 1 CPC. Bhim Sen alleges that "these facts could not be pleaded and the plea regarding the ownership was also not raised properly by the plaintiff though issue qua ownership to the extent of 1/2 share was framed" After the suit was decided on 7.5.73. Nand Lal cannot deny the ownership of the plaintiff in the shop in dispute. Only dispute left between the parties will be regarding inheritance to Jagan Nath which was claimed falsely by Nand. Lal on the basis of forged Will. In this application it was alleged that due to lack of proper pleas and material documents i.e. the judgments passed by the Civil Courts where the title of Bhim Sen and Nand Lal was decided which goes to the root of the case could not be placed before the court and will affect the case of the appellant on merits. It was submitted that if the plaintiff was not permitted to withdraw this suit with permission to file another suit regarding the same subject matter, there will be severe blow to the cause of justice. It was submitted that if the plaintiff was not permitted to withdraw this suit with permission to file another suit regarding the same subject matter, there will be severe blow to the cause of justice. It was submitted that the function of the courts is to do substantial justice in the cases that come before them. It was submitted that technicalities should not stand in the way of the courts doing justice, he drew my attention to Baniram and Ors. v. Gaind and Ors., A.I.R. 1982 S.C. 789 where it was held that non pleading 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, through, belated, the Supreme. Court considers it just and proper, in the interest of justice to permit the appellant plaintiff to withdraw the suit with liberty to file fresh suit on the same cause of action or on a different cause of action. 10. In my opinion, the plaintiffs cause should not suffer Ts the altar of procedure. Previous suit was between. Wand, Lal, Narata Ram, Jagan Nath, Bhim Sen and Amrik Singh. In that suit, adjudication had been made. Facts set up there were quite material and relevant so far as this suit was concerned. 11. For the reasons given above, this revision fails and is dismissed.