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2005 DIGILAW 266 (PNJ)

Rameshwar v. Ram Sarup

2005-02-16

SURYA KANT

body2005
Judgment Surya Kant, J. 1. This civil revision is directed against the order dated 28.7.1984 passed by Additional District Judge, Narnaul, whereby an application moved by the plaintiff (respondent herein) under Order 23 Rules 1 and 2 of the Code of Civil Procedure (in short, the Code) as well as other application under Order 6 Rule 17 of the Code for amendment of the plaint were decided and while accepting the prayer mentioned in the first application, he has been permitted to withdraw the suit with permission to file fresh one on the same cause of action. 2. Aggrieved at the afore-mentioned order that the defendants (petitioners herein) have approached this Court. 3. Briefly stated, the facts are that in the year 1975, a suit for possession by way of partition was filed by the respondent-Ram Sarup. The petitioners contested the same on the plea that the parties were in separate possession of their respective s hares. T he learned trial Court, vide its judgment and decree dated 18.4.1977, dismissed the suit. It may be mentioned here that the following issues were framed by the learned trial Court:- (1) Whether the site in dispute depicted as ABCDE-FGHI in the plan annexed with the Plaint is jointly owned and occupied by the plaintiff and the defendants to the extent of the half share each, as alleged,? OPP (2) Whether the site depicted as FGHI is in the joint occupation of all the co-sharers as alleged? OPP (3) Whether the suit is not maintainable in the present form? OPD (4) Whether the suit is bad for non-joinder of necessary parties? OPD (5) Whether the suit is barred by the principle of res judicata? OPD (6) Whether the suit is bad on account of partial partition? OPD (7) Whether the suit is false and frivolous? OPD (8) Relief. 4. After discussion on Issue No. 1, the trial Court in para 9 of its judgments dated 18.4.1977 returned the following finding:- "In view of my above, discussion, I find that the plaintiff has failed to prove that the disputed property is jointly owned by the parties or that the plaintiff and defendant No. 4 have half share therein whereas defendants 1 to 2 have the other half share." 5. In relation to Issue No. 4, namely, whether the suit is bad for non-joinder of necessary parties, the trial Court held as follows: - "The plaintiff in his statement as PW-5 stated that the disputed property originally was owned by Deda ancestor of the parties. According to the plaintiff, Sheoji and Ram Lal were sons of the said Deda and the plaintiff and defendant No. 4 are descendants of Ram Lal and the defendant No. 1 to 3 are descendants of Sheoji and so the plaintiff and defendant No. 4 are owners of half share of the disputed property whereas defendants 1 to 3 are owners of the other half share. The plaintiff in his cross-examination admitted that Hem Raj, Arjun, Gurdial sons of Jhabu son of Kishan Sahai son of Sheoji son of Deda are alive. So naturally they also become necessary parties to the suit as they are descendants of Deda from whom the plaintiff claim title in the disputed property. But they have not been impleaded as parties and so the suit is bad for non-joinder of necessary parties. Thus, the issue stands decided in favour of the contesting defendants." 6. The respondent appealed against the aforesaid judgment before the first Appellate Court and during the pendency thereof that the two applications which led to the passing of the impugned order by the first Appellate Court, were moved by him. It may be mentioned here that at the time of admission of this civil revision this Court vide order dated February 27, 1985 had stayed the operation of the impugned order. 7. I have heard Shri Sanjay Mittal, learned counsel for the petitioners as well as Shri Ajay Jain, learned counsel for the respondent and have also perused the record. 8. Shri Sanjay Mittal contends, inter alia, that the first Appellate Court has allowed the application under Order 23, Rule 1 and 2 of the Code on an erroneous premise as if the suit was dismissed on a technical ground, namely, for non-joinder of necessary parties. In this regard, reference has been made to the observations made by the first Appellate Court in paragraph 5 of impugned order. In this regard, reference has been made to the observations made by the first Appellate Court in paragraph 5 of impugned order. He further contends that since the suit of the respondent was dismissed on merits as well, a valuable right had accrued in favour of the petitioners which could not have been taken away by the first Appellate Court permitting the respondent to file afresh suit on the same cause of action and, this, putting the said judgment at naught. It is also his contention that the learned first Appellate Court erred in law is observing that non-joinder of necessary parties was merely a technical defect and that despite a preliminary objection to this effect in the written statement before the trial Court, the respondent failed to implead the necessary parties and/or to amend his suit, therefore he ought not to have been permitted to cure the alleged defect at the appellate stage. In support of his submissions, reliance has been placed by Shri Mittal on the judgments in the cases of (i) Gian Chand v. Pavitar Singh, 1993(3) R.R.R. 370; (ii) Executive Officer, Arthanareswarar Temple v. R. Sathyamoorthy, 1999(2) R.C.R. (Civil) 193; and (iii) Gian Chand Modi v. Sawan Ram Muni Lal, 2003(1) R.C.R. 306. 9. In Arthanareswarar Temples case (supra), their Lordships of the Supreme Court have held that "if the plaintiff wants to withdraw appeal as well as the suit unconditionally, such permission so far as withdrawal of suit is 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." 10. In Gian Chands case (supra), the Court had taken the view that once the trial Court dismissed the suit on merits, there was no occasion for the Appellate Court to allow the plaintiff to withdraw suit itself so as to institute a fresh one on the same cause of action. 11. A somewhat similar view has been taken by this Court in Gian Chand Modis case (supra). 12. 11. A somewhat similar view has been taken by this Court in Gian Chand Modis case (supra). 12. On the other hand, Shri Ajay Jain, learned counsel for the respondent contended that the first Appellate Court possesses wide powers including the power to permit the plaintiff to withdraw a suit at the appellate stage and that each case needs to be decided on the basis of its own facts and circumstances as there can be hardly any uniform criteria to see as to under what circumstances the suit can be permitted to be withdrawn at the appellate stage. Reliance has been placed by him on judgment of this Court in the case of Veer Bhan and Anr. v. Madan Gopal (1991-1)99 P.L.R. 199. 13. Having heard learned counsel for the parties, I am of the view that the issue as to under what special circumstances the first Appellate Court can permit a plaintiff to withdraw a suit and to institute a fresh one. is no longer res integra. It is well settled that a valuable right accrues in favour of the defendant when the suit of the plaintiff is dismissed on merits and the same cannot be taken away simply by permitting the plaintiff to withdraw his suit and file a fresh one on the same cause of action. 14. In the case in hand, it appears from the impugned order passed by the first Appellate Court that notwithstanding the objection raised on behalf of the petitioner against withdrawal of the suit by the respondent so as to institute a fresh one on the same cause of action, the same was brushed aside on an erroneous assumption as if the suit was dismissed on technical defect, namely, non-joinder of necessary parties. As it would bear out from the judgment dated 18.4.1977 passed by the trial Court, the suit filed by the respondent was dismissed on merits as well. Thus, the very basis of the impugned order is erroneous, rendering it un-sustainable. 15. Consequently, this civil revision is allowed and the impugned order dated 28.7.1984 passed by learned Additional District Judge, Narnaul is set aside and the application under Order 23 Rule 1 and 2 of the Code is dismissed. Thus, the very basis of the impugned order is erroneous, rendering it un-sustainable. 15. Consequently, this civil revision is allowed and the impugned order dated 28.7.1984 passed by learned Additional District Judge, Narnaul is set aside and the application under Order 23 Rule 1 and 2 of the Code is dismissed. Resultantly, the appeal filed by the respondent against the judgment dated 18.4.1988 passed by the trial Court along with his application under Order 6 Rule 17 of the Code seeking amendment of the plaint stand revived. The first Appellate Court will decide the application under Order 6 Rule 17 of the Code moved by the respondent (plaintiff) on merits, without being influenced by the observations made either in its previous order and/or in this order. The appeal shall be decided on merits after hearing the parties. 16. Since the matter has remained pending in this Court for a considerable long period, the first Appellate Court shall make an endeavour to decide the appeal within a period of six months from today. 17. Parties through their counsel are directed to appeal before the first Appellate Court on 23.3.2005.