Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 179 (PNJ)

Saurabh v. Ashok Kumar

2013-02-13

M.Jeyapaul

body2013
JUDGMENT Mr. M. Jeyapaul, J.: - These two Revisions have been preferred by the 1st defendant Saurabh challenging the order passed by the trial Court granting permission to the 1st respondent/plaintiff to withdraw the suit filed for declaration of his title to 1/4th share in the subject property and the order of dismissal of the application filed by the 1st respondent under Section 10 of the Code of Civil Procedure. 2. The plaintiff Ashok Kumar filed originally a suit on 1.11.2008 seeking declaration of his title to 1/4th share in the suit property based on the Will dated 11.8.2003 executed by Smt. Sitawanti. Later on, she filed a suit for partition and separate possession in respect of the property covered under the said Will executed by Smt. Sitawanti. 3. The plaintiff, contending that though the cause of action as well as the reliefs claimed in those two suits are different, the Will executed by Smt. Sitawanti on 11.8.2003 was the subject matter in issue in both the suits, sought permission to withdraw the suit filed for declaration of title. 4. The 1st defendant resisted the said application on the ground that the application had been filed with malafide intention to drag on the proceedings and also to defeat the application filed under Section 10 CPC. Contending further that if the application is allowed the 1st defendant would suffer loss and injury, he sought for dismissal of the said application. 5. The trial Court found that the plaintiff has a right to withdraw a suit in a case where he has not sought for any liberty to file a fresh suit on the same cause of action. Further in order to avoid the multiplicity of the proceedings, the examination of witnesses twice and also to save the time of the Court the trial Court held that the plaintiff should be permitted to withdraw the suit for declaration of title. Consequent thereupon, the application filed under Section 10 of the Code of Civil Procedure for stay of the subsequent suit was dismissed. 6. The learned counsel appearing for the Revision petitioner/1st defendant would submit that the provision under Order 23 Rule 1 was not adverted to by the trial Court while granting permission to withdraw the suit for partition originally filed by the plaintiff. 6. The learned counsel appearing for the Revision petitioner/1st defendant would submit that the provision under Order 23 Rule 1 was not adverted to by the trial Court while granting permission to withdraw the suit for partition originally filed by the plaintiff. Even there was no formal defect in the earlier suit, the trial Court had permitted the plaintiff to withdraw the earlier suit and continue the subsequent suit. 7. I find that there is no force in the submission made by the learned counsel appearing for the Revision petitioner. The plaintiff who has laid a suit is a dominus litus. He cannot be compelled to continue the suit against his will unless substantial loss or injury would be caused to the defendant in the suit. In the instant case, the plaintiff had not sought for any permission from the trial Court to file a fresh suit on the very same cause of action. The plaintiff originally filed a suit for declaration of his title with respect to 1/4th share in the subject property. The subsequent suit for partition and separate possession has been filed by the plaintiff on a different cause of action. But it is found that the Will executed by Smt. Sitawanti was the subject in controversy in both the suits. Therefore, the plaintiff has thought it fit to withdraw one suit with a view to continue the other suit. 8. Under Order 23 Rule 1, CPC the plaintiff who is the master of the suit has every right to withdraw the suit but only when he seeks liberty from the Court to file a fresh suit on the same set of cause of action, he has to comply with the provision under Order 23 rule 3 of the Code of Civil Procedure. As already pointed out by me, no liberty had been sought by the plaintiff to file a fresh suit on the same cause of action. 9. This Court in Bansi Lal Clarance Vs. The United Church of Northern India Trust Association 1995(1) Civil Court Cases 191 (P&H) has observed as follows:- “There is no dispute with the proposition as contended by counsel for the respondent and as laid down in Kanhyia Lal’s case (supra) that the provisions or Order 6 Rule 17, Code of Civil Procedure, have to be read as not to make Order 23 Rule 1, CPC, redundant. It is correct that the Legislature has thoughtfully provided in Order 23 rule 1 (3) that the Civil Court has jurisdiction to grant permission to withdraw the suit with liberty to file a fresh suit on the same cause of action, where it is satisfied that the formal defect pointed out by the parties may result in dismissal of the suit. The trial Court can also grant permission to withdraw the suit for other sufficient grounds where justice and equity demand. However, in the present case, justice and equity demand otherwise.” 10. Firstly, that was a case where liberty was sought to file a fresh suit on the same cause of action. Under such circumstances the plaintiff was to establish that there was some formal defect or that there existed sufficient ground for the plaintiff to come out for a fresh suit. 11. I find that the above ratio will have no application to the facts and circumstances of this case where the plaintiff has sought for withdrawal of one suit filed by him without seeking any liberty to file a fresh suit on the same cause of action. 12. The trial Court has found that granting permission to withdraw the suit would avoid multiplicity of proceedings and recording of evidence of the same witnesses twice. I do not find any error in the decision taken by the trial Court. The provision under Section 10 CPC would apply only in a case were two suits between the same parties in which the matter in issue is directly and substantially in issue are pending disposal. The trial Court also has rightly dismissed the petition filed under Section 10 of the Civil Procedure code filed by the 1st defendant as it has become hopelessly infructuous. 13. In view of the above, both the Revision fail and consequently both of them are dismissed. There is no order as to costs. ---------0.B.S.0------------