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2018 DIGILAW 152 (GAU)

Mridul Baruah v. Ramawater Agarwalla

2018-01-29

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. A.K. Gupta, learned counsel appearing for the petitioner. Also heard Mr. B. Dutta, learned counsel for the respondents. This civil revision petition under Article 227 of the Constitution of India is directed against an order dated 25.09.2014, passed by the learned Munsiff No. 1, Tinsukia, in Title Suit No. 29/14, whereby the learned Munsiff had allowed the petition, being Petition No. 2094/2014, filed by the plaintiffs praying for withdrawal of the suit with liberty to file afresh subject to payment of Rs. 1,000.00, as cost, to the defendant making it clear that payment of the cost will be a condition precedent for institution of the new suit. 2. In order to appreciate the controversy, it will be appropriate to notice a few relevant facts, which are enumerated below: 3. The respondents herein, as plaintiffs, had filed Title Suit No. 29/2014 in the court of learned Munsiff No. 1, at Tinsukia, primarily praying for grant of a perpetual injunction against the defendant restraining the defendant, his representatives or any other persons claiming under or through him from entering into the suit land as well as restraining them from carrying out any acts prejudicial to the plaintiffs. The plaintiffs had also filed an application under Order XXXIX Rule 1 and 2, read with Section 151 CPC, which was registered as Misc. (J) Case No. 44/2014, for grant of temporary injunction. 4. The suit land measures 1 Bigha, 3 Katha and 15 Lecha and there is only one defendant. 5. On 05.05.2014, an ex parte ad-interim injunction was granted against the defendant, copy of which was served on the defendant on 06.05.2014. The defendant, according to the plaintiffs, violated the order of injunction and entered into the suit land and to demonstrate possession over the suit land, raised some temporary structures. Thereafter, the defendant filed written statement and written objection on 30.05.2014 and 26.05.2014, respectively, asserting his claim of exclusive possession over the suit land relying upon an unregistered Sale Deed dated 26.05.1999. 6. With the above backdrop, the plaintiffs filed the petition on 25.06.2014 under Order XXIII Rule 1(3) read with Section 151 CPC, wherein, amongst others, it was stated as follows: "2. 6. With the above backdrop, the plaintiffs filed the petition on 25.06.2014 under Order XXIII Rule 1(3) read with Section 151 CPC, wherein, amongst others, it was stated as follows: "2. That, the plaintiffs state that the defendant through his written statement dated 30.05.2014, not only claimed possession over the suit land but also disputed the right, title and interest of the plaintiffs over and in respect of the suit land. By way of such hostile claim, the defendant has casted a doubt over the right, title and interest of the plaintiffs over and in respect of the suit land, in as much as, the defendant by way of construction of illegal structure over the suit land disputed the possession of the plaintiffs." 7. An objection was filed to the said petition contending that the same was filed to abuse the process of law and to fill up the lacunae and, that too, when the defendants had disclosed the defence. 8. The learned trial court, in the impugned order dated 25.09.2014, had observed as follows: "After going through the submissions of the petitioner/plaintiff and the defendant, this court is of the opinion that the intention of the plaintiff behind withdrawal of the suit is to enable himself to amalgamate all the reliefs in the new suit. In case the withdrawal is not allowed, there is every likelihood that it would lead to multiplicity of proceedings. Moreover, the instant suit is at the very initial stage as issues have not yet been framed. The plea taken by the defendant that his defence has already been disclosed and if at this stage withdrawal is allowed, it will cause prejudice to him is untenable. This is because the learned counsel for the defendant has himself argued that the plaintiff instead of seeking withdrawal of suit can seek amendment of his pleading under Order VI CPC. Now in case the amendment of the plaint is allowed, the plaintiff will still have an option to seek new reliefs in the light of the defence taken by the defendant, the implication of which will be same as that of instituting a fresh suit with new reliefs. As such this court is of the opinion that there is sufficient ground for allowing the plaintiff to withdraw the instant suit with liberty to file fresh suit on the subject matter of the instant suit." 9. As such this court is of the opinion that there is sufficient ground for allowing the plaintiff to withdraw the instant suit with liberty to file fresh suit on the subject matter of the instant suit." 9. Thereafter, the plaintiff filed a fresh suit which is registered on Title suit No. 76/2014 in the court of the learned Munsiff No. 1, Tinsukia. In the said suit, there are 7 defendants and the sole defendant in the earlier Title Suit No. 29/2014 is arrayed as defendant No. 1. 10. Mr. Gupta has submitted that the petition filed by the petitioner does not satisfy the requirements under Order XXIII Rule 1 (3) so as to enable the court to pass an order in favour of the plaintiffs permitting them to withdraw the suit filed with a liberty to file afresh. He contends that the ground on which the petition was filed has to be considered in the touchstone of "sufficient ground" and, according to him, the ground cited by the plaintiffs cannot be construed to have made out a case for grant of the relief claimed by the plaintiffs. In this connection, he has relied on the judgment of the Supreme Court in the case of K.S. Bhoopathy & Ors. v. Kokila & Ors., reported in (2005) SCC 458, with particular reference to paragraph 16 thereof. 11. Mr. Dutta, learned counsel for the respondents has submitted that no interference is called for with the above order of the learned trial court dated 25.09.2014, as the ground shown in the petition under Order XXIII Rule 1(3) read with Section 151 CPC constitute sufficient cause to enable the plaintiff to withdraw the suit with liberty to file afresh. He submits that as, at the time of filing the suit the title of the plaintiffs was not in dispute, the plaintiffs had filed a suit for injunction simpliciter, but as the defendant, defying and violating the order of injunction granted by the learned trial court, dispossessed the plaintiffs from a part of the suit land and as the title of the suit land also came to be disputed, new cause of action having arisen, the plaintiffs had filed the above petition under Order XXIX Rule 1(3) CPC. It is also submitted by him that the plaintiffs had deposited the cost in terms of the order of the court and the defendant had withdrawn the same and, not only that, the defendant had also lodged a Caveat for the new suit to be instituted by the plaintiffs. He further submits that the defendant had also participated in the fresh suit filed by the plaintiffs and, much later, have assailed the order dated 25.09.2014, passed in Title Suit No. 29/2014 by filing this application under Article 227 of the Constitution of India. He submits that the defendant, having accepted the court's order, cannot approbate and reprobate and he cannot be allowed to turn around and make a volte-face to question the legitimacy and validity of the said order. He has relied upon the judgment of the Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRS. & Ors., reported in (2008) 4 SCC 594 , Amar singh v. Perhlad & Ors., reported in AIR 1989 P&H 229 . 12. In Amar singh (supra), on which reliance is placed by Mr. Dutta, learned counsel for the respondents, the order passed in an application filed under Order VI Rule 17 CPC, allowing amendment was challenged by the defendants after accepting the cost awarded for grant of such amendment. In such circumstance, the Punjab and Haryana High Court had held that the defendant having taken the benefit of the order, he cannot be allowed to turn around and challenge the order as allowing the same would amount to nullifying the fact of acceptance of cost. 13. I am in agreement with the ratio laid down by the Punjab and Haryana High Court in Amar singh (supra). In the instant case, the defendant not only accepted the cost but had also entered appearance in the fresh suit filed by the plaintiff. Though the present petition was filed on 19.12.2014, the petition was moved on 20.02.2015 and, in the meantime, written statement had been filed by the defendant. The petitioner had two options: either to accept the order passed by the learned trial court as correct, or to challenge the same. Though the present petition was filed on 19.12.2014, the petition was moved on 20.02.2015 and, in the meantime, written statement had been filed by the defendant. The petitioner had two options: either to accept the order passed by the learned trial court as correct, or to challenge the same. Once he had accepted the cost, the conclusion that has to be necessarily drawn is that the defendant had accepted the order and, therefore, it will be impermissible in law to allow him to turn around and take a different posture. 14. However, it will also be appropriate to consider the argument advanced by the learned counsel for the petitioner that the order dated 25.09.2014 does not fulfill the requirement of Order XXIII Rule 1(3) CPC. 15. For the said purpose, it will be relevant to extract Order XXIII Rule 1 to 5 herein below for better appreciation: "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) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons. (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) 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) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs." 16. On a reading of the above provisions, it is clear that under Sub-rule (1) of Rule 1, it is open for the plaintiff to abandon the suit or abandon a part of the claim at any time after institution of the suit against all or any of the defendants. The proviso to Sub-rule (1) and Rule 2 relate to minors and, therefore, for the purpose of this case, it is not necessary to dwell upon the same. The language of Sub-rule (3) of Rule 1 shows that when the plaintiff intends to withdraw a suit with liberty to institute a fresh suit in respect of the same subject matter of the suit or a part of the claim, permission of the court under Sub-rule (3) of Rule 1 of Order XXIII is necessary. It provides that such permission to withdraw the suit with liberty to institute a fresh suit in respect of the same subject-matter can be granted only where the court is satisfied that the suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or part of the claim. Sub-rule (4) of Rule 1 of Order XXIII makes it clear that where the plaintiff withdraws from a suit or part of the claim without the permission referred to in Sub-rule (3), he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. 17. Sub-rule (4) of Rule 1 of Order XXIII makes it clear that where the plaintiff withdraws from a suit or part of the claim without the permission referred to in Sub-rule (3), he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. 17. Where a plaintiff is in lawful or peaceful possession of a property, injunction simpliciter will lie, but a person in wrongful possession is not entitled to an injunction against the rightful owner. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession cannot seek the relief of injunction simpliciter, without claiming the relief of possession. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue and the prayer for injunction will have to be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, the issue of title may substantially and directly arise for consideration as, without recording a finding thereon, it will not be possible to decide the issue of possession. In a suit for injunction, it goes without saying that a finding of title cannot be recorded unless there are specific pleadings and appropriate issue regarding title. But, even if there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, it will be necessary for the court to relegate the parties to the remedy by way of a comprehensive suit for declaration of title, instead of deciding the issue in a suit for injunction. But, even if there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, it will be necessary for the court to relegate the parties to the remedy by way of a comprehensive suit for declaration of title, instead of deciding the issue in a suit for injunction. [see Anathula Sudhakar (supra)] 18. The entire edifice of the petition filed by the plaintiffs under Order XXIII Rule 1 (3) CPC was built on the transgression by the defendant after the order of injunction had been passed as well as on the plea taken by the defendant with regard to title on the basis of an unregistered sale deed. These, in the considered opinion of the court, are sufficient grounds on which the plaintiff is entitled to withdrawal of the suit with a liberty to file a comprehensive suit afresh on the same subject-matter. 19. The reliance placed by Mr. A.K. Gupta on the case of K.S. Bhoopathy (supra) is misplaced. The distinguishing feature in the said case is that the plaintiffs ought to have sought for a declaration of title, but they did not do so and had only sought a decree of injunction and, later on, realizing the weakness of the case, sought to withdraw the suit with liberty to file afresh when their Second Appeal was pending admission. In this circumstance, the Supreme Court had observed that the High Court was not justified to grant permission for withdrawal of the suit with permission to file afresh and, accordingly, had set aside the order. The factual matrix in the instant case is entirely different from the set of facts in K.S. Bhoopathy (supra). In view of the above discussions, I find no merit in this petition and, accordingly, the same is dismissed.