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2003 DIGILAW 67 (HP)

MANGAT RAM v. CHURA DUTT

2003-03-28

R.L.KHURANA

body2003
JUDGMENT R.L. Khurana, J.—The petitioner is the defendant in Civil Suit No. 126/1 of 1994. He is aggrieved by the order dated 13.6.2000 of the learned District Judge, Kinnaur at Rampur, whereby the respondents/plaintiffs were permitted under Order 23 Rule 1(3), Code of Civil Procedure, to withdraw their suit with liberty to bring a fresh suit on the same cause of action. 2. The facts of the case leading to the present petition, briefly, may be thus stated. The plaintiffs are owners of the land comprising of Khata/ Khatauni No. 11/42 and Khasra No. 386 in Kasba Bazar Rampur Bushahr while the defendant is the owner and in possession of the adjoining land comprising of khasra No. 384. Alleging encroachment by the defendant over an area measuring 2 mtrs. in width and 11.40 mtrs. in length out of their land comprising of khasra No. 386, the plaintiffs filed a suit, being Civil Suit No. 126/1 of 1994 before the learned Sub Judge 1st Class, Rampur, on 25.8.1994 for perpetual and mandatory injunction to the effect that the defendant be restrained from raising any further construction over the encroached area and for directing him to pull down the construction raised by them over such area and to restore the same to the plaintiffs. 3. The defendant while resisting the suit, denied the encroachment on any part of the land belonging to the plaintiffs and pleaded that the construction has been raised by him in his own land. 4. The learned trial Court vide judgment and decree dated 28.11.1997 dismissed the suit of the plaintiffs. The learned trial Court come to the conclusion that the plaintiffs had failed to prove that the defendant had encroached upon any land belonging to them. 5. The plaintiff, aggrieved by the judgment and decree of the learned trial Court dismissing their suit, went up in appeal before the learned District Judge. In such appeal, an application came to be made by the plaintiffs under Order 23 Rule 1(3), Code of Civil Procedure, for leave to withdraw the suit with liberty to bring a fresh suit on the same cause of action. It was averred in paras 2 to 4 of such application as under:— "2. In such appeal, an application came to be made by the plaintiffs under Order 23 Rule 1(3), Code of Civil Procedure, for leave to withdraw the suit with liberty to bring a fresh suit on the same cause of action. It was averred in paras 2 to 4 of such application as under:— "2. That during the argument it was pointed out that the appellants/ plaintiffs has not mentioned the area owned and possessed by them in the plaint though the area encroached by the defendant/ respondent has been mentioned in the plaint. The site plan and map approved by M.C. Rampur is on record. 3. That to ascertain the built up portion and to specify the area encroached upon by the defendant can only be ascertained if the land owned and possessed by the appellants/plaintiffs is find mentioned in the plaint. Due to this formal defect and other infirmities in the plaint, the suit/appeal is likely to fail and prejudice shall be caused to the applicants/appellants due to this technical defect in the plaint. 4. That the applicants/defendants want to file fresh suit on the same cause of action on the same subject matter and no prejudice shall be caused to the respondent rather it shall avoid the multiplicity of litigation between the parties." 6. The application was resisted by the defendant/respondent. The learned District Judge vide the impugned order allowed the application thereby permitted the plaintiffs to withdraw the suit under Order 23, Rule 1(3), Code of Civil Procedure, with liberty to bring a fresh suit on the same cause of action after obtaining proper demarcation of the land in dispute subject to payment of costs of Rs. 1,000. The learned District Judge observed as under:— ".....I find that the parties had been at issue with regard to determination of their boundary. The learned Sub Judge had rejected the suit on the ground that P.W. 3, Mohan Singh, Field Kanungo had not carried out demarcation as per the rules and instructions on the subject. That the respondent had been at fault was writ large. The respondent had not produced any evidence so as to controvert the evidence of P.W. 3, Mohan Singh, Field Kanungo. The respondent had also not agreed to local investigation at appellate stage. That the respondent had been at fault was writ large. The respondent had not produced any evidence so as to controvert the evidence of P.W. 3, Mohan Singh, Field Kanungo. The respondent had also not agreed to local investigation at appellate stage. Hence, valuable rights could not be said to have accrued in favour of the respondent by the passing of the judgment and decree under appeal. In the peculiar facts and circumstances of the case, I find that it was expedient and in the interest of justice and fair play to allow the appellants to withdraw the suit with liberty reserved in their favour to institute fresh suit on the same cause of action after obtaining proper demarcation of the land in dispute subject to costs of Rs. 1,000. The appellants are accordingly permitted to withdraw the suit with liberty reserved in their favour to institute a fresh suit on the same cause of action subject to costs of Rs. 1,000. The judgment and decree under appeal is set aside. The suit of the appellants is allowed to be withdrawn in their favour as noticed above." 7. I have heard the learned Counsel for the parties and have also gone through the record of the case. 8. It will not be out of place to first notice some admitted facts of the case. The plaintiffs before filing the suit had obtained the demarcation of the land in dispute. Such demarcation was carried out by PW 3 Mohan Singh, Field Kanungo. The demarcation carried out by PW 3 was not accepted and relied upon by the learned trial Court. An application under Order 26, Rule 9, Code of Civil Procedure, was made by the plaintiffs before the learned trial Court for appointing a Local Commissioner to demarcate the land for ascertaining the encroachment, if any, and the extent thereof by the defendant over the land belonging to the plaintiffs. Such application was dismissed by the learned trial Court. 9. An application under Order 26, Rule 9, Code of Civil Procedure, was made by the plaintiffs before the learned trial Court for appointing a Local Commissioner to demarcate the land for ascertaining the encroachment, if any, and the extent thereof by the defendant over the land belonging to the plaintiffs. Such application was dismissed by the learned trial Court. 9. During the pendency of the appeal before the learned District Judge, an application was again made by the plaintiffs under Order 18, Rule 18 and Order 26, Rule 9 read with Section 151, Code of Civil Procedure, praying that in order to appreciate the evidence coming on record and to determine the real controversy between the parties and for proper adjudication of the dispute, either the spot may be inspected by the Court or some Local Commissioner conversant with the method of demarcation of land in accordance with law and the instructions contained in High Court Rules and Orders be appointed for ascertaining the encroachment, if any, on the spot done by the defendant. The application was dismissed by the learned District Judge on 6.6.1998. Thereafter an application under Order 6 Rule 17, Code of Civil Procedure, was made by the plaintiffs on 25.6.1998 for the amendment of the plaint. Such application was, however, withdrawn by the plaintiffs and the same was dismissed accordingly on 27.7.1998 by the learned District Judge. 10. On the same day, that is, on 27.7.1998 another application under Order 6 Rule 17 read with Section 151, Code of Civil Procedure, was made by the plaintiffs for the amendment, of the plaint. This application also came to be dismissed as withdrawn on 20.8.1998. A third application under Order 6 Rule 17 read with Section 151, Code of Civil Procedure, for the amendment of the plaint came to be made by the plaintiffs on 16.11.1998. While this application was still pending consideration by the Court, an application for withdrawal of the suit under Order 23, Rule 1(3), Code of Civil Procedure, was made on 12.6.2000 and vide impugned order dated 13.6.2000, the plaintiffs were permitted to withdraw the suit with liberty reserved to them to bring a fresh suit on the same cause of action, as aforesaid. 11. 11. Dealing with the scope and ambit of the powers of the first/second appellate Court to permit the plaintiff(s) to withdraw the suit under Order 23 Rule 1(3), Code of Civil Procedure, with liberty to bring a fresh suit on the same cause of action, the Honble Supreme Court in Executive Officer Arthanareswarar Temple v. R. Sathyamoorthy and others,(1999)3SCC 115,restated the general principles for dealing with the application under Order 23 Rule 1 Code of Civil Procedure, in the following words:— dealing with applications under Order 23 Rule 1 CPC, that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial Court dismissing the suit and if the appellant plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial Court in favour of the defendant would get nullified, such permission for withdrawal of the suit should not be granted...” 12. Reiterating the above principle in K.S. Bhoopathy and others v. Kokila and others, (2000) 5 SCC 458, the Honble Supreme Court has held:— "The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the Court with caution and circumspection. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases." 13. In R. Rathinavel Chettiar and another v. V. Sivaraman and others, (1999) 4 SCC 89, the plaintiff therein (respondent before the Honble Supreme Court) had filed a suit against one "S", widow of his brother, for declaration of title to the suit property and for a direction for possession of the property and arrears of rent. The suit was decreed. Three days after the passing of the decree, the plaintiff sold the property to one "R" (the appellant before the Honble Supreme Court). "S" filed an appeal before the High Court of Madras against the decree passed in favour of the plaintiff. During the pendency of the appeal before the High Court, the transferee "R" was impleaded as a respondent under Order 22 Rule 10, Code of Civil Procedure. Thereafter, the plaintiff filed an application in the High Court for dismissing his suit as not pressed on the ground that he had compromised the dispute with "S" and praying for the compromise to be recorded. The High Court allowed the application. In the appeal preferred by the transferee "R" against the order of the High Court permitting the withdrawal of the suit and recording the compromise, the Honble Supreme Court allowing the appeal, held:— "Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject-matter of the suit with reference to which relief is sought. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject-matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystallised and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. Now, the decree can be recalled, reversed or set aside, either by the court which had passed it as in review, or by the appellate or revisional court. Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course. Therefore, 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 anybodys vested rights. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained." 14. In the present case, the suit of the plaintiffs was dismissed on merits by the learned trial court by holding that no part of the land belonging to the plaintiffs had been encroached upon by the defendant. Therefore, the defendant had derived an advantage of the adjudication of the dispute by the learned trial Court. By permitting the plaintiffs to withdraw the suit, the learned first appellate Court has not only permitted the plaintiffs to avoid the decree passed against him by the learned trial Court, has also made the defendant to lose the advantage of adjudication of the dispute in his favour. 15. By permitting the plaintiffs to withdraw the suit, the learned first appellate Court has not only permitted the plaintiffs to avoid the decree passed against him by the learned trial Court, has also made the defendant to lose the advantage of adjudication of the dispute in his favour. 15. As pointed out above, the plaintiffs earlier had approached the learned first appellate Court under Order 26 Rule 9, Code of Civil Procedure, for appointment of a Local Commissioner to demarcate the land and to ascertain the extent of encroachment, if any, by the defendant. Such application was dismissed on 6.6.1998. By permitting the plaintiffs to withdraw the suit with liberty to bring a fresh suit on the same cause of action "after obtaining proper demarcation of the land in dispute" the learned first appellate Court has proceeded to set aside its own order, which it was not competent to do. 16. It was for the plaintiffs to frame their suit in any form as advised taking into consideration the nature of cause of action accruing to them. From the facts and circumstances of the case as emanating from the pleadings of the parties and the judgment of the learned trial Court as well as the impugned order of the learned first appellate Court, it is evident that the plaintiffs realised the weakness of their suit and in order to get over the findings against them recorded by the learned trial Court, they took recourse to Order 23 Rule 1(3), Code of Civil Procedure, for withdrawal of the suit with leave to file a fresh suit. Therefore, no leave could have been granted to the plaintiffs to withdraw the suit. The impugned order of the learned first appellate court is bad and cannot be sustained. 17. As a result the present petition is allowed. The impugned order dated 13.6.2000 of the learned first appellate court passed in Civil Appeal No. 2 of 1998 is set aside and the application made by the plaintiffs under Order 23 Rule 1(3), Code of Civil Procedure, is dismissed with costs, quantified at Rs. 2,200. 18. 17. As a result the present petition is allowed. The impugned order dated 13.6.2000 of the learned first appellate court passed in Civil Appeal No. 2 of 1998 is set aside and the application made by the plaintiffs under Order 23 Rule 1(3), Code of Civil Procedure, is dismissed with costs, quantified at Rs. 2,200. 18. Consequent upon the setting aside of the impugned order dated 13.6.2000, the civil appeal No. 2 of 1998 shall stand restored and the learned first appellate court shall proceed to dispose of the same on merits in accordance with law without being influenced in any manner by any observation(s) made by this court in this order. Parties through their Counsel are directed to appear before the first appellate Court on 28.4.2003. Records be returned forthwith so as to reach the first appellate Court well before the date fixed. Petition allowed.