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2012 DIGILAW 794 (KER)

Kumari v. Prabhakaran

2012-08-17

THOMAS P.JOSEPH

body2012
JUDGMENT Thomas. P. Joseph, J. 1. I have heard the learned counsel on both sides regarding the maintainability of this Second Appeal preferred against a "Judgment" whereby the first appellate court has allowed the suit to be withdrawn with liberty to institute fresh suit in respect of the same subject matter. 2. The respondent/plaintiff sued the appellants for a decree for prohibitory injunction claiming that appellants have surrendered possession of the plaint C schedule to the respondent. 3. The appellants resisted the suit claiming that they are still in possession of the plaint C schedule. The Trial Court dismissed the suit. The respondent filed A.S. No.30 of 2009 in the court of learned IInd Additional District Judge, Thodupuzha. In that appeal, the respondent filed I.A.No.662 of 2011 seeking permission to withdraw the appeal and the suit with liberty to file fresh suit in respect of the same subject - matter, invoking R.1(3) of O.XXIII of the Code of Civil Procedure (for short 'the Code'). The said application was resisted by the appellant but allowed by the learned Additional District Judge. The learned Additional District Judge disposed of the appeal and LA. No.662 of 2011 vide judgment dated 1.8.2011. The said judgment is under challenge. 4. Be it under S.96 or S. 100 of the Code, an appeal is permitted only from a 'decree'. A 'decree', as per S.2(2) of the Code is the formal expression of an adjudication which, so far as regards the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. An order allowing the plaintiff to withdraw the suit does not conclusively determine the rights of the parties to the suit. On the other hand, the effect of an order allowing withdrawal of the suit is that all the proceedings taken therein including the judgment passed by the trial court (permission is granted in the appeal) will stand wiped out (see K. Sivaramaiah v. Rukmanu Ammal ( AIR 2004 SC 508 ). It follows that (when the suit is allowed to be withdrawn at the appellate stage, it amounts to the judgment of the Trial Court and the suit being wiped out. There is no determination of the rights of the parties in dispute in the suit. 5. It is relevant to note Rr. It follows that (when the suit is allowed to be withdrawn at the appellate stage, it amounts to the judgment of the Trial Court and the suit being wiped out. There is no determination of the rights of the parties in dispute in the suit. 5. It is relevant to note Rr. 148 and 149 of the Civil Rules of Practice (for short 'the Rules of Practice'). Both the said provisions refer to an 'order' being passed on the application for withdrawal. R.149 insists that the order of withdrawal shall be in form No.28 prescribed in the Rules of Practice. Form No.28 is as under: Form No.28 (Rule 149) ORDER FOR WITHDRAWAL OF A SUIT OR APPEAL The suit coming on this day for hearing in the presence of etc., and the plaintiff by his pleader applying for leave to withdraw the suit and for liberty to bring a fresh suit, it is ordered as follows:- 1) That upon payment by the piaintiff to the defendant on or before the day of the sum of for his costs of the suit and/or appeal, the plaintiff do have leave to withdraw this suit and be at liberty to bring a fresh suit on the same cause of action. 2) That in default of payment as aforesaid, within the said period the suit shall stand dismissed with costs, and the plaintiff shall pay to the defendant the sum of `..........for his cost of this suit and appeal. Therefore, an order allowing withdrawal of the suit, be it at the trial stage or at the appellate stage is neither a 'judgment' nor a 'decree'. Hence, an appeal is incompetent from an order allowing withdrawal of the suit. No decree is also required to be drawnup pursuant to the order allowing withdrawal of the suit. The above view gets support from the decisions in Mithai & Ors. v. Hasan Ali & Ors. (AIR 1930 All. 863) and Agaasadullah Kermani v. Nawab Mir Himayat Ali Khan (ILR(1964)2A.P. 734). 6. The learned Additional District Judge, rather than pronouncing a "judgment" in the appeal should have passed an 'order' on I.A.No. 662 of 2011 and as the order allowed withdrawal of the suit, passed consequential order in the appeal closing the same. 7. In the view of the above, I hold that the Second Appeal is not maintainable. 6. The learned Additional District Judge, rather than pronouncing a "judgment" in the appeal should have passed an 'order' on I.A.No. 662 of 2011 and as the order allowed withdrawal of the suit, passed consequential order in the appeal closing the same. 7. In the view of the above, I hold that the Second Appeal is not maintainable. The remedy of the appellants if aggrieved by the impugned order, is to challenge that order in appropriate proceeding. The Second Appeal is dismissed as not maintainable with the above observation. All pending Interlocutory Applications will stand dismissed.