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2005 DIGILAW 928 (PNJ)

Bawa Singh v. Tej Kaur

2005-09-02

VINEY MITTAL

body2005
Judgment 1. The defendants are the petitioners before this Court. They have impugned the order dated Docember 18, 2003 passed by the learned Additional District Judge, Rupnagar. Vide the aforesaid impugned order, the learned Additional District Judge had, during the course of first appeal, allowed the plaintiff Tej Kaur to withdraw the suit with liberty to file fresh suit on the same cause of action. 2. Certain facts be noticed : 3. Tej Kaur plaintiff filed a suit for joint possession to the extent of ½ share of the land measuring 62 bighas 3 biswas. The aforesaid suit was filed by her claiming herself to be daughter of Tarlok Singh and, as such, entitled to ½ share of the estate left behind by him. The suit was contested by the defendants. In the written statement filed by them, they raised a preliminary objection claiming that the said defendants have become the owner of the suit land by virtue of decrees dated April 22, 1972 and February 1, 1992 whereby Tarlok Singh had suffered consent decrees in their favour with regard to the suit land. On the basis of the aforesaid decrees, revenue entries had been entered in favour of the defendants and they had become the owners of the suit land. A replication was filed by the plaintiff. The factum of passing of the aforesaid decrees was not specifically denied. No challenge was made by the plaintiff to the aforesaid decrees. Originally issues were framed by the trial Court on January 8, 1997. Thereafter, the plaintiff sought an amendment of her plaint. The said amendment was originally declined by the trial Court but in revision petition filed before this Court, the said amendment was allowed. Accordingly, the plaintiff filed an amended plaint. On filing of her amended plaint, the defendants also filed an amended written statement. Accordingly, issues were re-framed on September 18, 1999. In the re-framed issues, issues No. 1-B and 1-C may be noticed as follows : "1-B. Whether judgement and decree dated 22-4-1972 passed by the Court of Sub-Judge Ropar is illegal null and void not binding on the plaintiff? OPP 1-C. Whether judgement and decree dated 1-2-1982 passed by the Court of Ld. ASSJ, Ropar is illegal null and void not binding on the plaintff? OPP 4. OPP 1-C. Whether judgement and decree dated 1-2-1982 passed by the Court of Ld. ASSJ, Ropar is illegal null and void not binding on the plaintff? OPP 4. After the parties led their evidence in the suit, the learned trial Court vide judgement and decree dated September 14, 2001 dismissed the suit filed by the plaintiff. Further issue No. 5 with regard to maintainability of the suit was also answered by the learned trial Court against the plaintiff and was held that since she had not challenged the decrees dated April 22, 1972 and February 1, 1992 and even otherwise in view of the findings on issues No. 1-B and 1-C upholding the decrees, the suit filed by the plaintiff was not maintainable. 5. The plaintiff challenged the aforesaid judgement and decree passed by the learned trial Court by filing a first appeal. The appeal was filed by the plaintiff on October 8, 2001. Ultimately, in the month of October 2003, the plaintiff filed an application before the learned First Appellate Court to permit her to withdraw the suit with liberty to file a fresh one on the same cause of action. This application was vehemently contested by the defendants (respondents before the First Appellate Court). It was claimed by them that specific objection had been raised by them with regard to the passing of the decrees and they had claimed their title on the basis of said decrees in the written statement, therefore, the plaintiff at this stage during the course of first appeal, when rights had accrued in favour of the defendants, could not be permitted to withdraw the suit. 6. The learned First Appellate Court, however, overruled objections raised by the defendants and vide its order dated December 18, 2003 allowed the application filed by the plaintiff. Consequently, she was granted permission to withdraw the suit with liberty to file a fresh one. As a result of the aforesaid permission, the judgement and decree of the trial Court was set aside. 7. The defendants have now approached this Court through the present revision petition. 8. I have gone through the material available on the record and have also perused the impugned order passed by the learned First Appellate Court. In my considered opinion, the present revision petition deserves to be allowed. 9. 7. The defendants have now approached this Court through the present revision petition. 8. I have gone through the material available on the record and have also perused the impugned order passed by the learned First Appellate Court. In my considered opinion, the present revision petition deserves to be allowed. 9. From the narration of the above noticed facts, it is absolutely clear that the defendants had taken a preliminary objection in their written statement with regard to maintainability of the suit and had even raised the defence based upon the aforesaid decrees. They claimed title over the suit property having become owner thereof on the basis of two decrees. The plaintiff thereafter filed replication. She remained satisfied by merely denying the averments made in the written statement but without challenging the aforesaid decrees in any manner. Once the plaintiff remained silent and did not take any step to challenge the aforesaid decrees, during the course of proceedings in the suit, then obviously after the aforesaid decrees had been held to be good and valid and the suit of the plaintiff had been dismissed as not maintainable, she could not be permitted to withdraw the said suit resulting into nullifying the findings recorded by the learned trial Court. On the passing of the judgement and decree by the learned trial Court, whereby the suit was dismissed, a vested right had accrued in the defendants. The said right could not be permitted to be taken away by the plaintiff. Neither any justification was offered by the plaintiff in the application seeking withdrawal of the suit nor the Appellate Authority has given any reason to justify the aforesaid ground of permission. It is also further apparent that the appeal had been filed by the plaintiff on October 8, 2001. Even in the grounds of appeal, no such permission has been sought to withdraw the suit. 10. It is well settled that the considerations for grant of permission to withdraw the suit at the appellate stage are totally different than the considerations which are available to the trial Court. Even in the grounds of appeal, no such permission has been sought to withdraw the suit. 10. It is well settled that the considerations for grant of permission to withdraw the suit at the appellate stage are totally different than the considerations which are available to the trial Court. During the course of pendency of original proceedings in the trial Court, the Court may permit the plaintiff to withdraw the suit with liberty to file a fresh one, when there is a formal defect in the suit or for any other reason as provided, but such a right is not available to the plaintiff when there is already a judgement against him. This aspect of the matter has been completely lost sight of by the learned First Appellate Court while passing the impugned order. 11. As a result of the aforesaid discussion, the present revision petition is allowed. The order dated December 18, 2003 passed by the learned First Appellate Court is set aside. As a consequence, the appeal filed by the plaintiff before the learned First Appellate Court shall stand revived and shall be decided by the first appellate Court on merits of the controversy, and in accordance with law. There shall be no order as to costs. 12. The parties through their learned counsel have been directed to appear before the learned Additional District Judge, Ropar on 21-10-2005.