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2010 DIGILAW 1006 (KAR)

Puttaswamy v. Nagaraju

2010-09-15

ANAND BYRAREDDY

body2010
Judgment :- Heard the counsel for the appellant and the learned counsel for the respondents. 2. The parties are referred to by their rank before the trial court for the sake of convenience. 3. The facts of the case are as follows: The appellants were the plaintiffs before the trial court. The suit was filed for partition and separate possession. Plaintiffs 1 to 4 were the minor children of defendant no.2 and were represented by their mother. It was contended that the plaintiffs and defendants were the members of a joint family. Defendant no.4 was the purchaser of the suit property. It was contended that the first defendant was the karta of the joint family and the second defendant was the father of the plaintiffs and the son of defendant no.1. It was alleged that the second defendant had neglected the family consisting of the plaintiffs and their mother and had sold away the suit property in favour of defendant no.4 which was purchased out of the joint family funds. It is further stated that the suit property was constructed by spending huge amounts of money and the sale in favour of defendant no.4 had come to the knowledge of the plaintiffs only immediately prior to the filing of the suit. It is after obtaining a copy of the sale deed dated 4.3.1996 that it was realized that the property had been sold for a pittance though it was worth several lakhs of rupees. The plaintiffs being minors, it was incumbent on defendants 1 to 3 to have obtained permission from the court in selling the property as their interest was involved and it is only on account of active collusion between defendants 1 to 3 that they have been deprived of their legitimate share in the suit properties. Hence, it was held that the sale deed was a document which was liable to be set at naught. It is on that basis that the suit relief was claimed. The defendants had contested the suit and had denied the plaint allegations. It was also contended that the mother of the plaintiffs had no right to file a suit for partition during the lifetime of the second defendant on behalf of the plaintiffs. It was also denied that the suit property was ancestral property. The defendants had contested the suit and had denied the plaint allegations. It was also contended that the mother of the plaintiffs had no right to file a suit for partition during the lifetime of the second defendant on behalf of the plaintiffs. It was also denied that the suit property was ancestral property. It was evident from the material on record, according to the defendants, that it was the self acquired property of defendant no.1 and it was his exclusive property over which defendant no.2 and defendant no.3 could not claim any right. The suit was apparently brought to deprive the fourth defendant of the benefit of purchase. The sale seed dated 4.3.1996 being a registered sale deed could not be set at naught at the instance of the plaintiffs unless it was established that the suit property was joint family property. Though these were the pleadings, at the stage of the trial, evidence was tendered by the plaintiffs to contend that the suit property had, in fact , been purchased from out of the sale proceeds of the joint family property which was brought to sale and having regard to the proximity of the transactions it could certainly be demonstrated that defendants 1 to 3 in active collusion with defendant no.4, had indicated a nominal consideration in respect of the sale though huge amounts were invested on the suit property. It was only in order to defraud the plaintiffs of their legitimate share in the said property. The trial court having framed issues on the respective pleadings, had dismissed the suit while negating the issues against the plaintiffs. The same having been carried in appeal, the appellate court has in turn affirmed the judgment of the trial court. Incidentally, the plaintiffs sought to file two interlocutory applications before the lower appellate court in I.A.No.5 and I.A.No.7, I.A.No.5 is filed under Order XLI Rule 27 of the Code of Civil Procedure. 1908 (hereinafter referred to as ‘the CPC’ for brevity), seeking to produce the registered sale deed dated 20.1.1975, whereby the property belonging to the family was sold in order to facilitate the purchase of the suit property. 1908 (hereinafter referred to as ‘the CPC’ for brevity), seeking to produce the registered sale deed dated 20.1.1975, whereby the property belonging to the family was sold in order to facilitate the purchase of the suit property. This according to the plaintiffs’ mother was not available at the time of filing the suit and the document if produced and proved would clinch the case in favour fo the plaintiffs that the suit property was indeed purchased out of the proceeds of the sale of the said property, which was admittedly the property of the family. I.A.7 was filed seeking withdrawal of the suit with liberty to file a fresh suit on the same cause of action on the ground that the mother of the minor plaintiffs had filed the suit without the permission of the court and was filed during the life time of their father and hence, the mother being the natural guardian of the plaintiffs and since she was not worldly wise, she had not prosecuted the suit with due diligence, as is apparent from the fact that it was not even pleaded that the suit property was purchased out of the sale proceeds of the sale of the family property which is sought to be evidenced by the document which is filed along with I.A.5 and it is in that circumstance that the plaintiffs filed the said application. The lower appellate court while affirming the judgment of the trial court has also dismissed the applications. Firstly insofar as I.A.s No.5 is concerned, it is held that the sale deed sought to be produced is executed by T.K.Rangaswamy who is not related to the plaintiffs or the defendants as is evidenced from the genealogical tree that is produced along with the plaint. Therefore, on the face of it, the lower appellate court has found that the application lacked merit and has rejected the same. Therefore, on the face of it, the lower appellate court has found that the application lacked merit and has rejected the same. Insofar as I.A.No.7 is concerned, the need expressed by the appellants – plaintiffs to withdraw the suit and file a fresh suit also has not been accepted by the lower appellate court, which has referred to the plaint and has expressed that in the absence of any pleadings to the effect that defendant no.1 and defendant no.2 – the father of the plaintiffs was given to had habits and that the suit property was sold to defendant no.4 under a fabricated document no purpose would be served in entertaining the application and permitting the plaintiffs to file a fresh suit only on that additional ground and hence has dismissed the applications. 4. In the present appeal, at the time of admission, the substantial questions of law that are framed are as follows:- “(1) Whether the first appellate court was justified in not considering the application filed under Order XXIII Rule 1 of the CPC? And (2) Whether the first appellate court was required to consider the application under Order XLI Rule 27 of the CPC before proceeding to dispose of the appeal on merits.” 5. At the time of hearing, the learned counsel for the appellants would lay stress on the reasons assigned by the lower appellate court in rejecting the said applications and while not so much addressing the merits of the judgments of the trial court or the lower appellate court on the pleadings that were present. It is emphasized that the interest of minors is concerned and the admitted fact that the suit was filed by the mother who was an illiterate woman and who has jeopardized their interest by not prosecuting the suit in the manner it sought to have been as is evident from the proceedings and the tardy fashion in which evidence was tendered, requiring correction by recourse to I.As.5 and 7. The learned counsel would argue at length to demonstrate that no injustice would be caused to the defendants if the plaintiffs, whose very livelihood was at stake, are permitted to establish their case in the manner known to law on the basis of documents which were unfortunately not produced at the relevant point of time. The learned counsel would argue at length to demonstrate that no injustice would be caused to the defendants if the plaintiffs, whose very livelihood was at stake, are permitted to establish their case in the manner known to law on the basis of documents which were unfortunately not produced at the relevant point of time. The summary fashion in which the applications have been dealt with by the lower appellate court therefore, is not in accordance with law and the learned counsel would expound in this fashion to contend that the applications ought to be allowed as it would be in the interest of justice and it is for the plaintiffs to stand or fall by the fresh proceedings that may go on. In the meanwhile, there would be no prejudice caused to the defendants except that they would have to face the proceedings, which are inevitable. 6. While the learned counsel for the respondents would submit that insofar as the reasoning of the trial court as well as the lower appellate court on the basis of the pleadings and the material already on record is concerned, it cannot be said that the same can be faulted. Therefore, the only point for consideration is whether the lower appellate court is justified in rejecting I.A.s.5 and 7 and since those are the only questions of law framed, it need not detain this court long in addressing the questions of law which are well settled by decisions of the court. The learned counsel would therefore place reliance on two decisions of the Supreme Court in this regard. Insofar as the application seeking permission to withdraw the suit and file a fresh suit is concerned, the learned counsel would place reliance on a decision in the case of K.S.Bhoopathy and others vs.Kohila and others, AIR 2000 SC 2132 and would contend that the permission to withdraw a suit and file a fresh suit is not as a matter of normal course and it would depend on the circumstances of the case and the effect it would have on the rights of the parties as laid down by the Supreme Court in the above decision. The counsel would submit that having regard to the brief reasons assigned by the lower appellate court, it cannot be said that the lower appellate court has not considered the effect of permitting the appellants to withdraw the suit and file a fresh suit. Given the facts and circumstances of the present case, the counsel would submit that the law as laid down by the Supreme Court in the judgment referred to above would cover the present case on all fours and would submit that the rejection of the application under Order XXIII Rule 1 of the CPC cannot be faulted. Insofar as the rejection of the application under Order XLI Rule 27 of CPC is concerned, reliance is placed on the decision of the Supreme Court in the case of State of Rajasthan vs. T.K.Sahani and others. (2001) 10 SCC 619 , wherein it is held that it is only something which remained obscure should be filled up so that the Court could pronounce judgment in a more satisfactory manner, which would prompt the court to consider an application under Order XVI Rule 27 of the CPC. Therefore, in the present case, the lower appellate court having held that on the face of it, the additional documents sought to be produced would not enable the plaintiffs to advance their case, when prima facie it did not establish any connection between the vendor is shown as a person who9 was in no way connected with the family of the plaintiffs, no purpose would be served in permitting the document to be taken as evidence and to deal with the matter afresh with reference to the same. Therefore, the learned counsel would submit that there is no infirmity in the rejection of the said applications. Though the said questions are not substantial questions of law, since they are framed as such by this court, the same may be answered accordingly. 7. By way of reply, the learned counsel for the appellant would still insist that there is no hard and fast rule as to the court granting permission to withdraw a suit and to file a fresh suit even at the stage of an appeal before the Supreme Court. 7. By way of reply, the learned counsel for the appellant would still insist that there is no hard and fast rule as to the court granting permission to withdraw a suit and to file a fresh suit even at the stage of an appeal before the Supreme Court. It is possible that permission can be granted to withdraw a suit and to file a fresh suit at any stage as is evident from a decision of the apex court in Beniram vs. Gaind, (1981)4 SCC 2009, wherein the Supreme Court has allowed a suit to be withdrawn with liberty to file a fresh suit, on payment of costs. Hence, he would submit that the rejection of the applications off-hand by the lower appellate court has caused grave injustice and hence requires to be reconsidered as a substantial question of law by this court. 8. Given the above facts and circumstances, to hold that the lower appellate court has not considered the averments in I.As. 5 and 7 merely on the footing that no elaborate reasons have been assigned seems to be untenable. The reasons however brief, if could support the decision, it cannot be said that there was non-consideration of the relevant legal position in addressing a particular application. As in the instant case, the lower appellate court no doubt has rejected the applications while assigning brief reasons, this by itself cannot give rise to a substantial question of law which requires to be answered by this court. In any event, for the record, it would be useful to refer to the law as laid down by the Supreme Court with reference to Order XXIII Rule 3 of CPC, in Bhoopathy’s case. The facts of that case were that the respondents before the Supreme Court had filed the suit against respondents 3 and 4 therein who were the defendants. The relief sought was for injunction against defendants from establishing and running a flour mill on their property and further restraining them from disturbing the plaintiffs exclusive user of a pathway lying between the properties of the plaintiffs and the defendants. The trial court decreed the suit holding that the plaintiffs had an exclusive right of user over the pathway and it also accepted the prayer for injuncting the defendants from establishing a flour mill. The trial court decreed the suit holding that the plaintiffs had an exclusive right of user over the pathway and it also accepted the prayer for injuncting the defendants from establishing a flour mill. On appeal, the appellate court modified the decree relating to the pathway and held that the plaintiffs had no exclusive right of user of the pathway and all the parties were entitled to use the same as common pathway. Aggrieved by this, a second appeal was preferred before the High Court and the appellants filed an application under Order XXIII Rule 1(3) of the CPC, seeking permission of the court to withdraw the suit with leave to file a fresh suit. It was claimed in the application that no prayer for declaration of plaintiffs title over the path-way was made in the plaint and in view of the cloud raised against their very title and right of user in the judgment of the lower appellate court, it was necessary to withdraw the suit and file a fresh suit and seek appropriate relief. The application was allowed by the High Court. The parties were before the Supreme Court wherein it was contended that when the second appeal had not been admitted, the application could not have been entertained and the same could not have been allowed by the High Court as no substantial question of law was framed in proceeding to consider the second appeal. However, it was argued by the respondents before the Supreme Court that the application was heard at length and therefore, no exception could be taken that the order was premature and it was well within the discretion of the court to grant such permission for withdrawal of the suit. It was this debate that was decided by the Supreme Court in the above decision. While extracting the text of Order XXIII Rule 1 of the CPC which is also extracted herein for ready reference. It was this debate that was decided by the Supreme Court in the above decision. While extracting the text of Order XXIII Rule 1 of the CPC which is also extracted herein for ready reference. “ORDER XXIII Withdrawal and Adjustment of Suits (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 XXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (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. Gram 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.” The Supreme Court held that the Rule makes a distinction between absolute withdrawal which is termed as abandonment and withdrawal, with the permission of the court. This is maintained throughout in the substituted Rule by making appropriate changes in the wording of various Sub-rules of Rule 1. While explaining the legislative policy and the scope of the Rule, with reference to several decided cases, namely, Bakhtawar Singh vs. Sada Kaur. (1996)11 SCC 167 and Executive Officer Arthaneswarar Temple vs. R.Sathyamoorthy, (1999)3 SCC 115 m, the Supreme Court has pronounced as follows:- “16. From the above it appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. (1996)11 SCC 167 and Executive Officer Arthaneswarar Temple vs. R.Sathyamoorthy, (1999)3 SCC 115 m, the Supreme Court has pronounced as follows:- “16. From the above it appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the trial court and the first appellant court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate court they took recourse of order XXIII Rule 1(3) CPC and filed the application for withdrawal of the suit with leave to file fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied by merely stating that grant of permission will not prejudice the defendants. It is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted of appellate or second appellate stage prejudice to defendant is writ large as he loses the benefit of the decision in his favour in the lower court.” Therefore, it is clear that a court which allows such an application must be satisfied that there existed proper grounds and reasons for granting permission for withdrawal of the suit with leave to file a fresh suit by the plaintiffs and in such a matter. Statutory mandate is not satisfied by merely stating that grant of permission would not cause prejudice to the defendants. In case such permission is granted at the appellate or second appellate stage, prejudice to the defendants is writ large as the defendants lose the benefit of the decision in their favour before the lower court and in that light of the matter, it cannot be said that such permission being granted to the plaintiffs in the present case would not militate against the interest of the defendants or that it would not take away a vested right in them, especially, defendant no.4 who ha purchased property under a registered sale deed and the said property not being shown to be joint family property. Insofar as the law with regard to the additional evidence sought to be tendered under Order XLI Rule 27 of the CPC is concerned, the Supreme Court in the above decision has laid down that as to the scope of the provision, in terms as follows:- “4. It may be pointed out that this Court as long back as in 1963 in K. Venkataramaiah V. Seetharama Reddypointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for the purpose amended provision of Order 41 Rule 27(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for the dismissed of the application is untenable. The order under challenge cannot, therefore, he sustained. It is accordingly set aside. The application is restored to its file. The high Court will now consider the appeal and the application and decide the matter afresh in accordance with law.” Hence it is the discretion of the court to either allow or to reject an application under Order XLI Rule 27 of the CPC. In this case, the lower appellate court having assigned brief reasons as to why it does not deem it fit to allow such application, it cannot be said that thee was non-consideration of the said I.A.no.5 for valid reasons in rejecting the same. Hence, there is no ground made out by the appellant. The substantial questions of law framed are accordingly answered against the appellants. The appeal stands dismissed.