Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 867 (RAJ)

Ayub Khan v. Ahsanulhaq

2004-05-31

A.C.GOYAL

body2004
Honble GOYAL, J.–Since identical questions are involved both the revisions are being decided together. (2). The relevant facts in brief are that the plaintiff non- petitioner Ahsanulhaq (hereinafter referred to be as the plaintiff) filed a civil suit for possession of the suit property against the three defendants-Non-Petitioner Nos. 2 to 4 in revision No. 74/2004 (hereinafter referred to be as the defendants) in the court of District Judge, Tonk, in the year 1978 with the averments that one House No. 4 is situated in Ward No. 11 of Tonk. One Noor Mohammad was the owner of this house. After his death, this house was divided on 13.10.1965 in between three sons of Shri Noor Mohammad. Two portions of this house were sold by two sons of late Noor Mohammad respectively to Shamim Begum and Mohammad Sufiyan who subsequently sold the same to the plaintiff but they continued to occupy the house with the permission of the plaintiff and now the plaintiff wants possession. The defendants contested the suit. (3). Issues were framed and after trial the District Judge passed a decree of possession in favour of the plaintiff on 31.5.1980. (4). First Appeal No. 67/1980 preferred by one defendant Mohammad Jaffar was dismissed by this court vide judgment dated 9.8.1994. (5). In the meantime the plaintiff filed execution petition which was registered at S1 No. 18/1980. In execution proceedings warrant of possession was issued by the Executing Court and Nazir to the concerned Court with the warrant of possession came to the spot on 26.3.1996. (6). Thereafter the objector Ayub Khan filed a civil suit in the court of District Judge, Tonk, on 4.4.1996, for specific performance of the contract with the averments that the plaintiff agreed to sale the disputed property to him for a sum of Rs. 55,000/-. The agreement was executed on 4.4.1989 by the plaintiff in favour of the objector. A sum of Rs. 40,000/- was paid to the plaintiff with a condition that as and when the decree dated 30.5.1980 is affirmed in the first appeal pending in the High Court, the objector would pay the remaining amount within six months, he would execute the decree. The said appeal has been decided in favour of the plaintiff on 19.4.1994 but even after the expiry of six months the plaintiff did not execute the registered sale-deed in favour of the objector. (7). The said appeal has been decided in favour of the plaintiff on 19.4.1994 but even after the expiry of six months the plaintiff did not execute the registered sale-deed in favour of the objector. (7). On 20.4.1994, the objector filed the objections under Order 21 Rule 97 C.P.C. in the execution petition on the basis of the same agreement dated 4.4.1989. (8). Thereafter two application, one under Order 23 Rule 1 C.P.C. and the other under Order. 21 Rule 101 C.P.C. were filed by the objector on 24.3.2004. The application under Order 21 Rules 97 and 101 C.P.C. filed in execution was dismissed by District Judge, Tonk, vide order dated 31.3.2004 and the second application under Order 23 Rule 1 C.P.C. filed in the Civil Suit No. 12/1996, filed by the objector for specific performance was dismissed by the District Judge, Tonk, vide order dated 5.4.2004, hence these two revision have been preferred against both the orders. Before adverting to the submissions, it would be appropriate to reproduce the relevant provisions of C.P.C. as under:- O. XXI, R. 101 ``[ 101, Question to be determined. - All questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.] ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS [1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendant abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) 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. 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 in respect of the subject- matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (9). The objector vide application dated 24.3.2004, filed in execution case No. 10/80, prayed that on the basis of the objections raised by him, the court should frame issues and should decide the same after recording evidence of the parties. The trial court dismissed this application making observations that the civil suit and objections filed by the objector are based upon the agreement dated 4.4.1989 and the trial of the civil suit is complete and the same is posted for final submissions and earlier on 17.11.2003, when the execution petition was being heard, the objector raised on objection that his evidence should be first recorded and the trial court on that very day passed this order that both the objections as well as the civil suit shall be decided together and since the evidence has already been recorded in the civil suit, it is unnecessary to record the same evidence on the same points in the execution petition and both the objections as well as the civil suit would be heard and decided together. While dismissing the second application filed on the same day in Civil Suit No. 12/1996, the trial court observed that three is no formal defect in the suit and the trial of the suit is complete and same is posted for final submissions for sufficient time; that it would be unnecessary to allow the objector to lead same evidence in the execution petition on the objections based upon the same agreement; that both the objections as well as the civil suit are pending in the same court and the trial court continued the proceedings together in both the matters vide order dated 17.11.2003 and both the objections as well as the civil suit would be decided on merits. It was also observed by the trial court that the only intention of the objector in filing the application for withdrawal of the suit is to delay the disposal of the objections as well as the suit. (10). The first submission made on behalf of the objector is that since the objector applied for withdrawal of the suit without any permission of filing the fresh suit, the trial court was bound to allow the said application. Reliance is placed upon M/s. Hulas Rai Baij Nath vs. Firm K.B. Bass and Co. (1), wherein it was held that Order 23 Rule 1, sub-rule (1), given an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is sought under sub-Rule (2) of that Rule, the plaintiff becomes liable for such costs as the court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under sub-Rule (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw without permission to file a fresh suit. it was next submitted that according to Order 21 Rule 101 C.P.C. the objector has no right to file a separate suit and thus the civil suit filed by the objector was barred by law and the Executing Court was bound to determine all the questions relating to right, title or interest of the objector in the disputed property. In Nusserwanji E. Pooneger and Others vs. Mrs. In Nusserwanji E. Pooneger and Others vs. Mrs. Shirinbai F. Bhesania and Others (2), it was held that scope of rule 101, Order C.P.C. provides for exclusive jurisdiction of executing court to decide the questions covered by Rule 101 C.P.C. In Fatima Automobiles vs. P.K.P. Nair and Another (3), it was held that the objections of the objector are to be decided as provided under Order 21, Rule 101 C.P.C. and the objector can not maintain a separate suit in view of Order 21 Rule 101 C.P.C. Similar view was taken in Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Another (4). According to learned counsel for the objector both the order under challenge are thus contrary to the provisions of law. On the other hand, it was submitted on behalf of the plaintiff that vide application under Order 23 Rule 1 C.P.C. the objector prayed that the civil suit filed by him would have no bearing on the objections filed by him in the execution case and thus he wants to withdraw the said suit with a right to get the objections to be decided in the execution petition and thus this is not the case of withdrawal of the suit without any permission. It was also submitted that the suit was filed prior to the objections, and was tried for about a period of more than eight years and the same is now pending for final arguments since long and the only intention of the objector is to delay the proceedings of the execution and the trial court has rightly held that the objections and suit both would be decided together on merits. (11). I have given my thoughtful consideration to the rival submissions. In view of the specific provision of Order 21 Rule 101 C.P.C. and the judgments relied upon the legal position can not be disputed that all the questions including question relating to right, title or interest of the objector in the disputed property shall be decided in the execution case and not by a separate suit. It is also not in dispute that the plaintiff has an unqualified right to withdraw the suit at any stage without any permission to institute fresh suit. It is also not in dispute that the plaintiff has an unqualified right to withdraw the suit at any stage without any permission to institute fresh suit. But upon a deep consideration of both the applications and decisions thereon by the trial court, it makes very clear that the only intention of the objector is to delay the execution proceedings. He himself instituted the suit 16 days prior to filing the objections. The basis of the civil suit and the objections is the same i.e. an agreement said to be executed by the plaintiff in favour of the objector on 4.4.1989. It took eight years in completion of the trial of the suit and now the civil suit is posted for final submissions for some considerable time. It is significant to observe here that it was the case of the plaintiff on application under Order 23 Rule 1 C.P.C. that there is no formal defect in the suit and the same was the observation of the trial court. In that case, there can be no apprehension for the objector to say that the suit filed by him suffers from formal defect. Apart from this, this is not a case of simple withdrawal without any condition, rather the objector made the prayer for withdrawal of the suit with a pre condition that he would get his objections to be decided in the execution petition. What the trial court did is that since the objections as well as the grounds in the suit are based on the same agreement and the evidence in the civil suit is complete and it would be futile to record the same evidence of the parties on the same questions and the Court would decide the civil suit as well as the objections together on merits. In view of these findings of the court, there should be no grievance to the objector as the said orders are not going to prejudice the case of the objector on merits in any way except one the his purpose to delay the execution petition in snow not going to be served. In view of these findings of the court, there should be no grievance to the objector as the said orders are not going to prejudice the case of the objector on merits in any way except one the his purpose to delay the execution petition in snow not going to be served. The trial court has not declined to consider and decide the objections of the objector in accordance with the provisions of Order 21 Rule 101 C.P.C. One more submission was also made on behalf of the objector that this Court in S.B. Civil Revision Petition No. 863/99, filed by the objector directed the executing court vide order dated 28.5.1990 to decide the objections of the objector. But the trial court has no where expressed this opinion that the court is not going to decide the objections, rather it has specifically objections, rather it has specifically observed that the objections and the suit both would be decided together on merits on the basis of the evidence already recorded. (12). Thus in view of the entire discussion made hereinabove, I find no perversity, impropriety or illegality in both the orders. (13). Consequently, both the revisions are hereby dismissed with costs with a directions that the trial court would decide the objections filed in the execution case and the suit within two months from the date of receipt of a copy of this order.