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2008 DIGILAW 223 (GAU)

Sarat Chandra Konwar v. Tezpur University

2008-03-17

H.N.SARMA

body2008
JUDGMENT H.N. Sarma, J. 1. Heard Mr. T.C. Khatri, learned Counsel for the Petitioner. 2. This revision petition is directed against the order dated 14.11.07 passed by the learned Munsiff, Tezpur in T.S. No. 94/06 (T.S. No. 7/03) by which the prayer of the Plaintiffs/Petitioner for impleading them to abandon the claim against the will of the Defendants was allowed. 3. The Plaintiffs/opposite parties instituted the Title Suit No. 7/03 and present Petitioners have been impleaded as one of the Defendants in the said suit. The aforesaid title suit was instituted by the Tezpur University as Plaintiff praying - (i) for a declaration that the strike under guise of "non-co-operation" or in any other form, coercion, physical duress or gherao in the University by the employees or any section of the employees of the Tezpur University is illegal and unjust; (ii) for permanent and perpetual injunction against the employees of the Tezpur University consisting of members of Officers Guild and members of employees association represented by the Defendants from restoring to strike under the guise of "non-cooperation" or in any other form, coercion, physical duress or gherao in the University campus and not to hold and organize any meeting and resort to any demonstration, agitational programme, mass Dharna in any form and manner whatsoever within the University campus at Napam and also from Gherao any Executive Officers and members of the Teaching and research staff, students and research scholars of the University and also from causing any wrongful restraint, nuisance or annoyances to any such persons; (iii) for cost of the suit and (iv) any other relief/reliefs. 4. During the pendency of the aforesaid suit, the Plaintiff by filing an application under Order 1 Rule10(2) prayed for impleadment of as many as 161 persons as Defendants in the suit on 5.8.03 and after consideration of the same the learned trial court allowed the same. In view of the impleadment, the Defendants appeared and contested the suit by filing written statement. In view of the impleadment, the Defendants appeared and contested the suit by filing written statement. Subsequently, however, the Plaintiffs by filing application under Order 23 Rule 1 prayed for abandonment of the suit against the 70 members of Defendants on the ground that they expressed their regard for their involvement in the incident leading to agitational programme of the non-teaching employees of Tezpur University during March, 2003 and they have given undertaking that they would not involve themselves in any such activities in future and shall abide by the code of conduct as laid down in Statute No. 5 Section8.4(a to k) of the University and accordingly they did not want to proceed against them in the suit. An objection was filed on behalf of some remaining Defendants against the aforesaid prayer made by the Plaintiff under Order 23 Rule 1 Code of Civil Procedure. The learned trial court heard the matter on 18.6.07 and 14.11.07 and allowed the prayer of the Plaintiff as per the impugned order. 5. Mr. Khatri, learned Counsel for the Petitioner submits that those 70 Defendants against whom the suit was allowed to be abandoned having been impleaded as party Defendant, on the prayer of the Plaintiff, they cannot be permitted to be abandoned at a later point of time. The suit being in the nature of a representative capacity, the provisions of Order 1 Rule 8 of the Code of Civil Procedure should be strictly followed and the same not having been followed, the impugned order is not sustainable in law. 6. I have carefully considered the submission made by Mr. Khatri. The relevant provision of Order 23 Rule 1 of the Code of Civil Procedure is quoted herein below: 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 Defendants 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. 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) (3) (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. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several Plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other Plaintiffs. 7. The provision of Order 23 Rule 1 empowers the court to allow the Plaintiff to abandon the entire suit or part of the claim against the Defendants or any of them if there is more than one. The aforesaid right of the Plaintiff is absolute one and is not unqualified by this Rule. It is the Plaintiff to show whether he wants to continue or abandon the whole or any part of the suit against all the Defendants or some of the Defendants. Order 23 Rule 1 provides for abandonment of suit or part of the claim and withdrawal of the suit with leave of the court. The former can be said to be absolute withdrawal. Sub-rule 1 of the rule governs the absolute withdrawal and qualified withdrawal is governed by Sub-rules 3 and 4 of the Rule. The primary distinction between the two is that for the former leave of the court is not necessary and a Plaintiff can always abandon a part of his claim at his will. But in case of later leave of the court is necessary as the Plaintiff wants to reserve right for bringing a fresh suit on same cause of action. The whole idea underlying the provision contained in Order 23 Rule 1 is to avoid harassment of a party 'ad infinites'. But in case of later leave of the court is necessary as the Plaintiff wants to reserve right for bringing a fresh suit on same cause of action. The whole idea underlying the provision contained in Order 23 Rule 1 is to avoid harassment of a party 'ad infinites'. Interpreting Order 23 Rule 1, the Apex Court in the case of Hulas Rai Baij Nath v. Firm K.B. Bass and Co. reported in AIR 1968 SC 111 at paragraph 2 held as follows: (2) The short question that, in these circumstances, falls for decision is whether the Respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed. The language of Order 23, Rule 1, Sub-rule (1), Code of Civil Procedure gives 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 the suit in such circumstances and to compel the Plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order8, Code of Civil Procedure or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. In the present case, the pleadings in paragraphs 8 and 11 of the written statement, mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counter-claim, because no provision is shown which is counter-claim could have been filed in the trial Court in such a suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, if fact the Appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, if fact the Appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. Even in Parall, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the Appellant a decree may be passed in favour of the Appellant for that amount. In this paragraph also, the right claimed by the Appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the Appellant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit the Appellant, who was the agent of the Respondent, did not claim any rendition of accounts from the Respondent. In these circumstances, at the stage of withdrawal of the suit, no vested right in favour of the Appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of a suit to a Plaintiff after some vested right may have accrued in the suit in favour of the Defendant. On the facts of this case, it is clear that the right of the Plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the Appellant and, consequently, the order passed by the trial Court was perfectly justified. 8. On the facts of this case, it is clear that the right of the Plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the Appellant and, consequently, the order passed by the trial Court was perfectly justified. 8. The consequence of such abandonment of the suit is provided under Order 23 Rule 1 Sub-rule 4 to the effect that when the Plaintiff abandons the whole or any part of the claim under Sub-rule 1, he shall be liable for such cost as the court may allow and would be precluded from instituting a fresh suit in respect of such subject-matter or such part of the claim. 9. In the instant case, the abandonment sought for by the Plaintiff for the reasons as indicated above, has been clearly mentioned in the application. No doubt those Defendants were allowed to be impleaded on the prayer of the Plaintiff under Order 1 Rule 10(2) of the Code of Civil Procedure but allowing such prayer would not preclude the Plaintiff to exercise the right as provided under Order 23 Rule 1, if at subsequent stage the Plaintiff deemed it necessary. 10. Although Mr. Khatri has raised Anr. point that the suit being in the nature representative capacity as provided under Order 1 Rule 8 the impugned order is illegal for non compliance of relevant provisions of Order 1 Rule 8 Code of Civil Procedure is before filing such application. But a plain reading of the plaint it does not disclose that the suit was filed in the representative capacity and there is no averments to that effect in the plaint. The suit was filed for impleading as many as 164 numbers of the Defendants and out which now abandonment has been prayed for against 70 Defendants. The suit being not of representative character attracting the provision of Rule 1 Order 8 Code of Civil Procedure the aforesaid submission of learned Counsel has no lags to stand as indicated by the Apex Court in the case of Hulas Rai Baij Nath (supra). Accordingly the right to abandon the suit as claimed against some of the Defendants is not questionable from the end of the remaining Defendants. 11. In view of the above discussion, I do not find any merit in this revision petition and accordingly stands dismissed.