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2015 DIGILAW 233 (HP)

Ram Swaroop v. Narinder Parkash

2015-03-25

RAJIV SHARMA

body2015
Judgment : Rajiv Sharma, J. CMP No. 18448 of 2013. The applicants-appellants (hereinafter referred to as the applicants) have instituted this regular second appeal against the judgment and decree passed by the learned Addl. District Judge, Fast Tract Court, Solan, in Civil Appeal No. 10 FTC/13 of 2010, decided on 5.1.2013. The applicants have moved an application under Order 23 Rules 1 & 2 read with Section 151 CPC to withdraw the suit with liberty to file a fresh suit. 2. The applicants have filed Civil Suit bearing No. 42-K/1 of 1999 in the Court of Civil Judge, Kandaghat on 7.5.1999. It was dismissed by the learned trial Court on 30.3.2010. The applicants filed an appeal before the learned Addl. District Judge, Fast Track Court, Solan against the judgment and decree dated 30.3.2010. The appeal was dismissed by the learned Addl. District Judge, Fast Track Court, Solan on 5.1.2013. 3. According to the averments made in the application, the trial Court instead of relying upon map Ext. PW-1/A has relied upon map Ext. DW-4/C. The learned trial Court has returned the findings that there is no water source named as Patru-ka-Nal and Kuhal No. 5 originating from Patru-Ka-Hall. The location of Kuhal Nos. 4 & 5 was also in dispute. Thus, there was formal defect in the plaint. The plaintiff also could not implead all the beneficiaries of the different water sources and the plaint was also lacking material particulars. The khasra numbers of Sharratu-ka-Nala, Patru-ka-Nala and Patru-ka-hall at village Dhangheel and Bhuira were not given, therefore, the suit was bad for want of better particulars. There was non-compliance of Section 91 CPC read with Order 1 Rule 8 CPC. It is, in these circumstances, the present application has been preferred. 4. The application was contested by the defendants/non-applicants. It is averred specifically in the reply that the suit remained pending in the trial Court for about a decade and the appeal remained pending before the learned Addl. District Judge for a period of three years. The application was abuse of the process of the Court. The applicants have miserably failed to prove their case. There was no formal defect in the suit. No benefit could be derived by applicants at the belated stage regarding non-joinder of the necessary parties, more particularly, when the suit remained pending for almost 14 years. The application was abuse of the process of the Court. The applicants have miserably failed to prove their case. There was no formal defect in the suit. No benefit could be derived by applicants at the belated stage regarding non-joinder of the necessary parties, more particularly, when the suit remained pending for almost 14 years. The applicants cannot be permitted to take advantage of their own negligence. The suit has been dismissed for lack of evidence and cannot be termed as formal defect. The applicants cannot, at this belated stage, claim that there was non- compliance of Section 91 CPC read with Order 1 Rule 8 CPC. The suit was never instituted in the representative capacity. Rather, there was no issue regarding non-joinder of necessary parties. 5. I have heard the learned Advocates and gone through the pleadings carefully. 6. The suit has remained pending, as noticed hereinabove, for a period of more than 10 years before the trial Court and appeal was pending before the learned Addl. District Judge, for almost three years. There is no formal defect in the plaint. The suit has been dismissed for lack of evidence. The map Ext. PW-1/A was not prepared by an expert. Ext. DW- 4/C, map has been prepared by an expert. The applicants have failed to prove khasra numbers of water source called Sharratu-ka-Nala, Patru-ka- Nala and Patru-ka-hall at village Dhangheel and Bhuira. It was necessary for the applicants to verify the facts, more particularly, the khasra numbers of the water sources before filing the suit. No issue has been framed by the trial Court with regard to non-joinder of necessary parties. The suit was never filed in representative capacity. The negligence on the part of the applicants cannot be terms as formal defect in the plaint. The non-applicants cannot be permitted to face another round of litigation by permitting the applicants to withdraw this suit after lapse of about 15 years. 7. In the case of Vidhydhar Dube and ors. Vrs. Har Charan and others, reported in AIR 1971 All 41 , the Division Bench of the Allahabad High Court has held that the right of plaintiff to withdraw suit at appellate stage is not an absolute right but is subject to rights acquired by defendant under decree. It has been held as follows: “4. Vrs. Har Charan and others, reported in AIR 1971 All 41 , the Division Bench of the Allahabad High Court has held that the right of plaintiff to withdraw suit at appellate stage is not an absolute right but is subject to rights acquired by defendant under decree. It has been held as follows: “4. The learned counsel for the applicant has contended that the court below was in error in holding that the plaintiffs had no absolute right to withdraw the suit at the appellate stage under Order 23, Rule 1(1), Civil P. C. His submission is that appeal is a continuation of the suit and hence even in appeal the plaintiffs can withdraw the suit. We do not find any merit in this contention. A plaintiff has a right to continue or withdraw a suit till a decree comes into existence. Once the court makes a final adjudication and passes a decree, certain rights become vested in the party in whose favour the decree is made. Where the suit is dismissed, certain rights become vested in the defendants inasmuch as the findings given in the judgment become binding on the parties and operate as res judicata in subsequent litigation between the parties. The right of a plaintiff to withdraw the suit at the appellate stage thus becomes subject to the rights acquired by the defendants under the decree and ceases to be an absolute right. 5. Even when a suit is at the stage of trial and no decree therein has been passed, there may be cases where conceding an absolute right of withdrawal of suit to the plaintiff might result in serious injury to or jeopardise some valuable and substantive right of the defendant. A suit for accounts for instance may be filed by one of the partners of a dissolved firm. The defendants in such a suit may plead that the plaintiff himself is the accounting party and that on proper accounting they would be entitled to receive from him large sums of money, during the pendency of the suit it may become apparent that the suit is likely to culminate in a decree against him and he may seek to withdraw the suit. To hold that even under such circumstances that plaintiff has an absolute right to withdraw the suit, would be to acknowledge that the plaintiff's has an unfettered right to perpetrate fraud and dishonesty by defeating the legitimate rights of the defendants whose rights to file a fresh suit may have become barred by limitation. If under such or similar circumstances, it becomes difficult to concede an absolute right to the plaintiff of withdrawal of suit, much less can any such right be recognized when a decree has been passed and an appeal against the same has been preferred, Sub-rule (1) of Rule 1 of Order 23 of the Code does not in terms apply to appeals and, whatever may be the legal position in the trial court, in the appellate court the plaintiff, be he an appellant or a respondent, cannot be held to possess any absolute right to with draw the suit. 6. The appellate court may permit the plaintiff to withdraw the suit when by such withdrawal no vested or substantive right of the defendant is to be adversely affected but the plaintiff may not be permitted to withdraw the suit at the appellate stage if it results in depriving the defendant of some vested or substantive right. In the appellate court, the appellant may be held to have an absolute right to withdraw the appeal by equating the words "suit", "plaintiff" and "defendants" occurring in Order 23, Rule 1(1) of the Code with the words "appeal", "appellant" and "respondents" but he has no absolute right to withdraw the suit. The withdrawal of the appeal will not adversely affect the respondents if they have filed any separate appeal or a cross-objection as the same will remain unaffected. 10. In our opinion at the stage of appeal, the plaintiff, if he had filed the appeal, has the right to withdraw the appeal but not the suit except with the leave of the Court. The order of the court below thus suffers from no error of law or jurisdiction.” 8. In the case of Trinath Parida vrs. Sobha Bholaini and another, reported in AIR 1973 Orissa 37, the learned Single Judge has held that non-joinder of a necessary party is not a formal defect so as to attract the applicability of this rule. It has been held as follows: “7. In the case of Trinath Parida vrs. Sobha Bholaini and another, reported in AIR 1973 Orissa 37, the learned Single Judge has held that non-joinder of a necessary party is not a formal defect so as to attract the applicability of this rule. It has been held as follows: “7. Opinion appears to be unanimous in all the High Courts that non-joinder of a necessary party is not a formal defect within the meaning of this rule. It is a defect which affects the root of the plaintiff's case and cannot be said to be a mere formal defect, (see AIR 1950 Bom 378 (Asian Assurance Co. Ltd. v. Madholal Sindhu and AIR 1956 Bom 632 , (Tarachand Bapuchand v. G.A. Bagwan). In the circumstances, the application filed under Order 23, Rule 1, Civil P. C. has to be dismissed.” 9. In the case of K.S. Bhoopathy and ors. Vrs. Kokila and others, reported in (2000) 5 SCC 458 , the Hon’ble Supreme Court has held that before granting permission for withdrawal of suit, the Court is duty-bound to satisfy itself that proper grounds exist for granting such permission. Their lordships have further held that the permission to withdraw the suit with leave to file suit afresh cannot be taken recourse to where the claim as set out in the original suit is weak and adverse findings have been recorded against the plaintiff. It has been held as follows: “13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non sait Therefore on principle an application by a plaintiff under sub-rule 3 cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule 1, In (he former it is actually a prayer for concession from the Court after satisfying the Court regarding existences of the circumstances justifying the grant of the such concession. No doubt, 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. No doubt, 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; (1) where the Court is satisfied that a suit roust fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or courts below. Grant of permission for withdrawal of a suit with leave to file afresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. 17. 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 a 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. One 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 appellate court it is clear that the plaintiffs realised the weakness ia 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 Rules 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. 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 mere 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 mandates not complied by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at 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.” 10. In the instant case, the applicants have failed to satisfy the requirements of Order 23 Rule 1(3) in order to withdraw the suit with liberty to file fresh suit. The non-applicants have acquired rights after the suit was dismissed and the appeal was also dismissed by the learned Addl. District Judge. The defect was vital defect and not formal. 11. Accordingly, there is no merit in this application, the same is dismissed.