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2011 DIGILAW 1985 (PNJ)

Hazara Singh v. Lal Singh

2011-11-04

K.KANNAN

body2011
JUDGMENT K. KANNAN J. 1. The defendants are the appellants before this Court. The suit had been filed by the respondent for the relief of permanent injunction in relation to several items of properties. The suit had been dismissed finding that the plaintiff had not proved his possession. During the pendency of the appeal, a petition had been filed by the plaintiff-appellant for withdrawal under Order 23 Rule 1 CPC. The claim for withdrawal was contested on the ground that the plaintiff having suffered an adverse finding cannot seek to wipe away the same by withdrawing the suit. It would create a substantial prejudice to the defendant. This objection of the respondent was rejected by the lower Appellate Court and it had allowed the application for withdrawal of the suit and set aside the finding already recorded. 2. While deciding the application, the lower Appellate Court framed as a necessary point for determination that the case on grant of permission for withdrawal would have to be only considered in the context of the necessary pleadings and how the withdrawal of the suit would impact the rights on properties. The lower Appellate Court found that it was not as if all the properties were asserted by the defendants as being in their possession. On the other hand, the defendants were claiming possession only in respect of certain items and they had even admitted to the plaintiff as being alleged unauthorized possession in respect of some of the items. The dismissal of the suit cannot be understood as constituting any favourable finding for the defendants since the rights of defendants had not been dealt with by the trial Court but the plaintiff's claim alone had been rejected. The withdrawal cannot, therefore, cause any prejudice to the defendants. 3. This line of reasoning is challenged in the grounds of appeal by the appellants contending that a dismissal of suit must only be understood as favourable finding of the claims made by the defendants and it was a piece of wrong reasoning by the lower Appellate Court that a dismissal of the plaintiff's suit cannot be taken as favourable observation for finding in relation to the property in favour of the defendants. 4. 4. The issue of withdrawal of the suit and the extent to which such power could be said to exist for the applicant are to be seen in the context of the substantial questions of law which are raised in appeal, and reproduced below:- (i) Whether the plaintiff has unlimited power to seek for withdrawal of the suit at the Appellate Court after suffering an adverse judgment at the trial Court? (ii) Whether the Courts below have exercised the discretion properly in allowing for the withdrawal of the suit at the Appellate Court? There is a difference between a simple withdrawal of suit under Order 23 Rule 1 (1) and Order 23 Rule 1 (3) where withdrawal is sought with permission to institute a fresh suit. In so far as withdrawal simpliciter under Order 23 Rule 1(1) is concerned, there is a wider power of a liberty to the petitioner, who files such an application than the applicant moving an application under Order 23 Rule 1(3) with liberty to institute a fresh suit. The understanding of this distinction could be seen by reproducing the relevant provisions under Order 23 Rule 1. “Order 23 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 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. 2. xxxx xxxxx xxxx 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. 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 preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim. 5. xxxx xxxxx xxxxx” 5. if a petition is filed under Order 23 Rule 1 for withdrawal without liberty for filing a fresh suit under clause (3) then it means that the plaintiff is literally abandoning his action and he will be barred from instituting a fresh suit on the same cause of action. This is the effect of Clause (4) reproduced above. In this case, the plaintiff has sought to abandon his action and to that extent, the defendants cannot be in any way vexed by yet another litigation; nor the plaintiff be entitled to reopen all the issues and still plead that he is in possession of property for a fresh suit in relation to the same property will be barred by sub clause (3). This distinction was noticed by the Hon'ble Supreme Court in K.S. Bhoopathy and others Vs. Kokila and others (2000) 5 SCC 458. The relevant portion is reproduced as under:- “....The provision in Order 23 Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. The grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided.” 6. The issue will be slightly different if a plaintiff has been successful and rights of parties have been created by the successful plaintiff but he seeks to withdraw the suit to the detriment of the transferee. The issue will be slightly different if a plaintiff has been successful and rights of parties have been created by the successful plaintiff but he seeks to withdraw the suit to the detriment of the transferee. Here a transferee will be the person, who will be prejudiced by a withdrawal where a favourable finding has been rendered. In such an event, an attempt of withdrawal, which may prejudice yet another person could itself be a justification for denying the relief. This aspect of the case was adverted to by the Hon'ble Supreme Court in R. Rathinavel Chettiar and another Vs. V. Sivaraman and others (1999) 4 SCC 89. In that case, the subsequent purchaser from the plaintiff had been added as a party under Order 22 Rule 9 CPC. After the suit was decreed and when the appeal was pending at the instance of the defendant, the subsequent purchaser had been impleaded as a party under Order 22 Rule 9 CPC. The plaintiff, who was shown as one of the respondents was acting in collusion with the appellant and had moved an application for withdrawal. The Court in that case said that withdrawal which will cause prejudice to the purchaser from the plaintiff himself cannot be made to abandon the action and in any event such a purchaser, who is already a party cannot be affected and he will be entitled to contest the action on the same cause of action on the basis of which a suit had been filed. This decision was referred to by this Court in Girdhari Lal Vs. Sewa Ram PLR (2002) 144 to hold that an abandonment is not possible. The reliance on the judgment of R. Rathinavel's case (supra) must be confined only to cases where the abandonment will cause a prejudice to yet another person, who has come to take a benefit through a transaction with the successful plaintiff. The Girdhari Lal's case cannot, therefore, be taken as a proposition of law for all cases of abandonment of actions. In this case, the plaintiff has chosen to abandon the suit by a withdrawal and the successful defendants cannot be in any way prejudiced. The order passed already by the lower Appellate Court permitting the plaintiff for withdrawal simpliciter was perfectly justified and I answer the substantial questions of law as raised above. The appeal is dismissed.