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2018 DIGILAW 803 (HP)

Hoshiaru v. Kishan Chand

2018-05-03

AJAY MOHAN GOEL

body2018
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Chamba, in Civil Appeal No. 56 of 2003, dated 09.01.2004, whereby, learned Appellate Court while dismissing the appeal filed by the present appellant, upheld the judgment and decree passed by the Court of learned Sub Judge 1st Class, Chamba, in Civil Suit No. 50 of 2000, dated 20.05.2003, vide which learned trial Court had dismissed the suit so filed by the present appellant. 2. This appeal was admitted on 10.03.2005 on the following substantial question of law:- “Whether the order dated 14.3.2000 permitting respondent No. 2 to withdraw the suit for partition without notice to the plaintiff-appellant, is legally sustainable in view of provisions of Order 23 Rule 2-A of the Code of Civil Procedure?” 3. Brief facts necessary for adjudication of this appeal are as under:- Appellant/plaintiff (hereinafter referred to as 'plaintiff’) had filed a suit for declaration and permanent prohibitory injunction against the defendants pleading therein that order dated 14.03.2000, passed in Civil Suit No. 160/1998, on an application filed by plaintiff therein, namely, Kishan Chand, in which suit, present plaintiff was impleaded as defendant No. 4, vide which, learned Court in Civil Suit No. 160/1998, dismissed the suit as withdrawn, was illegal qua his rights and the same be declared as null and void and consequential relief by way of decree of permanent prohibitory injunction be granted in his favour, restraining the defendants from alienating the suit property allotted to them by way of illegal partition proceedings by Assistant Collector 1st Grade. 4. The suit was resisted by the defendants, who contested the very maintainability of the suit and on merits stated that the partition between the parties had been carried out in accordance with law and the same also stood effected and that parties were in cultivating possession of their respective shares as the separate possession of the same stood delivered to the parties by the revenue agencies. According to the defendants, plaintiff was estopped by his own act and conduct from filing the suit and further he has no cause of action to file the suit. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1.Whether the order dated 14.3.2000 passed by the ld. According to the defendants, plaintiff was estopped by his own act and conduct from filing the suit and further he has no cause of action to file the suit. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1.Whether the order dated 14.3.2000 passed by the ld. Senior Sub Judge, Chama in absence of the plaintiff is illegal qua his right and same is null and void as alleged? OPP 2. If Issue No. 1 is decided in affirmative, whether the plaintiff is entitled for the relief of permanent prohibitory injunction? OPP. 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD. 4. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 5. Whether the plaintiff has got no cause of action to file the present suit? OPD. 6. Whether the suit of the plaintiff is hopelessly time barred? OPD. 7. Whether the suit of the plaintiff is bad for non joinder and mis joinder of necessary parties? OPD 8. Whether the suit of the plaintiff is not properly valued? OPD 9. Whether the defendant is entitled for special costs amounting to Rs. 3000/- as alleged? OPD. 10. Relief.” 6. On the basis of evidence led by the parties, both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court in the following manner:- Issue No.1 No Issue No. 2 No Issue No. 3 No Issue No.4 Yes Issue No. 5 No Issue No. 6 No Issue No. 7 No Issue No. 8 No Issue No. 9 Yes Relief The suit of the plaintiff is dismissed as per the operative part of the judgment. 7. Learned trial Court dismissed the suit by holding that plaintiff had failed to establish that order dated 14.03.2000, passed by the Court of learned Senior Sub Judge, Chamba, on an application filed by Kishan Chand (plaintiff in Civil Suit No. 160 of 1998), was bad in the eyes of law. Learned trial Court held that the previous suit was filed against partition proceedings i.e. an order passed by Assistant Collector 1st Grade and said order of partition was passed by Assistant Collector 1st Grade was not objected to by the present plaintiff as he had not assailed it before any competent authority/Court of law. Learned trial Court held that the previous suit was filed against partition proceedings i.e. an order passed by Assistant Collector 1st Grade and said order of partition was passed by Assistant Collector 1st Grade was not objected to by the present plaintiff as he had not assailed it before any competent authority/Court of law. Learned trial Court also took note of the fact that the plaintiff while appearing in the witness box had admitted that he was party in the partition proceedings and that his statement was recorded at the time of partition qua possession and that he had also admitted that suit land stood partitioned in the year 1996 and possession stood delivered in the year 1998. Learned trial Court also held that plaintiff as PW1 had also admitted that he had deposed before the Tehsildar that he had no objection qua partition. Learned trial Court also held that plaintiff was not entitled for decree of permanent prohibitory injunction as he had failed to establish that the order passed by learned Assistant Collector 1st Grade in the partition proceedings dated 19.7.1997 was illegal or null and void order. 8. The judgment and decree so passed by the learned trial Court was challenged by the plaintiff by way of an appeal. Learned Appellate Court while dismissing the appeal on 09.01.2004, upheld the judgment passed by the learned trial Court. Learned Appellate Court held that suit filed by Kishan Chand was dismissed as withdrawn as plaintiff Kishan Chand had stated in the Court that he had compromised the case with the defendant. Learned Appellate Court also held that though it had come in the statement of Kishan Chand that he was withdrawing the suit as he had compromised the matter with the defendant therein, but as there was no compromise on record, therefore, the effect was that Kishan Chand had got his suit dismissed as withdrawn. Learned Appellate Court also reiterated that as plaintiff has failed to prove that order of partition passed by learned Assistant Collector 1st Grade suffered from any infirmity, especially when plaintiff was duly associated with the partition proceedings, there was no infirmity with the judgment passed by th learned trial Court. On these bases, learned Appellate Court dismissed the appeal. 9. Feeling aggrieved, plaintiff/appellant has filed the present appeal. 10. Mr. On these bases, learned Appellate Court dismissed the appeal. 9. Feeling aggrieved, plaintiff/appellant has filed the present appeal. 10. Mr. Anand Sharma, learned Counsel for the appellant has strenuously argued that the judgment and decree passed by the learned trial Court as well as learned Appellate Court are not sustainable in the eyes of law as both the learned Courts below erred in not appreciating that withdrawal of the previous suit by the respondents without any notice to the present appellant was not permissible in law as the withdrawal of the suit in view of compromise had adversely affected him. He further argued that learned trial Court in the said suit erred in not appreciating that even if it intended to allow the plaintiff therein to withdraw the suit, then it should have had transposed the present appellant in the said suit. In support of his arguments, learned Counsel for the appellant has relied upon the following judgments:- (1) Gurpreet Singh vs. Chatur Bhuj Goel, AIR 1988 SC 400 ; (2) Easwari v. Parvathi and others, (2014) 15 SCC 255 ; (3) Pemmada Prabhakar and Others v. Youngmen’s VYSYA Association and Others; (4) Govinda Iyer v. Kumar and others, AIR 1980 MADRAS 232; (5) Vishwa Nath v. Shakti Ram and others, AIR 1987 Himachal Pradesh 29; 11. On the other hand, Mr. N.K. Thakur, learned Senior Counsel appearing for the respondents has argued that there is no merit in the contentions of the learned Counsel for the appellant because previous suit was simply withdrawn by the plaintiffs therein by informing the Court that they intended to withdraw the suit in lieu of compromise entered into and it is not as if the suit was withdrawn on the basis of compromise, of which Court had taken cognizance legally. 12. I have heard learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the learned Courts below. 13. A perusal of the records demonstrates that Civil Suit No. 160 of 1998, which was filed by Kishan Chand (present respondent) was withdrawn on 14.03.2000 by the plaintiff therein by making a statement before the learned trial Court that in view of a compromise having been entered into between him, plaintiff intended to withdraw the suit. In view of statement so made by the plaintiff, the suit was permitted to be withdrawn. In view of statement so made by the plaintiff, the suit was permitted to be withdrawn. Here, it is not a case that plaintiff had produced some compromise before the Court and suit was permitted to be withdrawn in lieu of that particular compromise or some compromise was taken on record making it part of the record and then the suit was permitted to be withdrawn. In these peculiar circumstances, in my considered view, it was not incumbent upon the learned trial Court to have had issued notice to the present appellant who were also one of the defendants therein, before permitting the plaintiff therein to withdraw the suit. It is a matter of record that the plaintiff in the said suit was aggrieved by partition proceedings and had assailed the same by filing said civil suit. Incidentally, present appellant did not assail the partition proceedings independently but was supporting the plaintiffs cause therein. Simply because he was supporting the plaintiff cause therein, did not confer upon them any right that they ought to have had issued the notice and heard before permitting the plaintiff to withdraw the suit. The contention of the learned Counsel for the appellant that it was incumbent upon the learned trial Court to have had transposed the present appellants as plaintiffs in the said suit, in view of stand so taken by them in their written statement is also without merit. During the period when the suit was so pending before the learned trial Court, no such application was filed by the present appellant before the learned trial Court. In this view of the matter it was not the duty of the learned trial Court to have had transposed present appellant as plaintiffs as learned Counsel for the appellant wants this Court to believe. Further as I have already discussed above, this is a simple case where the suit filed by the plaintiff therein was withdrawn. The factum of it being recorded in a statement that he was withdrawing the suit in lieu of compromise having been entered into was of no consequence. Further as I have already discussed above, this is a simple case where the suit filed by the plaintiff therein was withdrawn. The factum of it being recorded in a statement that he was withdrawing the suit in lieu of compromise having been entered into was of no consequence. The argument of the learned Counsel for the appellant that there was no compromise on record does not help him at all because it strengthens the reasoning of this Court that it was a simplicitor withdrawal of the suit by the plaintiff by making a innocuous statement in the Court because he was doing so as the matter stood compromised. What adverse effect the same has had on the appellant could not be satisfactorily explained by him. Undoubtedly, present appellant had a right in law to assail the partition proceedings independently which he failed to do so. Now simply because the said partition proceedings were assailed by some other party, which subsequently withdrew the suit so filed unconditionally by informing the Court that it was doing so on account of compromise having been entered into cannot be said to have caused any prejudice to the present appellant who was also a defendant therein. Therefore, in view of above discussion, I do not find any merit in the arguments so advanced by learned Counsel for the appellant. 14. This Court is not dwelling or dealing in detail with the judgments relied upon by learned Counsel for the appellant because none of these judgments lays down the law that a simple prayer for withdrawal of suit by the plaintiff cannot be permitted by the competent Court without notice to the defendants. In view of above discussion, as there is no merit in the present appeal, the same is accordingly dismissed. Consequently, judgments and decrees passed by the learned Courts below are upheld. Pending miscellaneous application (s), if any, also stand disposed of.