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2022 DIGILAW 2 (RAJ)

Shanti v. Santosh @ Santok

2022-01-03

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : Pushpendra Singh Bhati, J. 1. Since the controversy involved in the instant petitions is common, therefore, the same have been heard together and are being decided by this common judgment. 2. These writ petitions have been preferred claiming, in sum and substance, the following reliefs: "i. the impugned order dated 04.09.2012 (An.P.6), may kindly be quashed and set aside; ii. the application dated 24.07.2012 (An.P.5) may also be rejected/dismissed with costs throughout; iii. Heavy costs be imposed on the defendants No. 4, 9 and 10 for abusing the process of the Court and the learned Trial Court may also be directed to hold an inquiry in this matter." 3. The bone of contention in the present case is the amended written statement filed by the respondents-defendants in response to the suit bearing Civil Original Suit No. 3/2009 filed by the plaintiff-petitioners before the learned Additional District Judge (Fast Track) No. 3, Jodhpur as well as the application seeking withdrawal thereof coupled with the subsequent application for treating such withdrawal application as null and void. As per the pleaded facts, the aforesaid suit was pertaining to the sale agreement/sale deed of a land comprising Khasra No. 546 of Village Dhinana Ki Dhani, Patwar Circle Pal, Tehsil and District Jodhpur (which has now been converted into an urban land). 4. Looking to the commonality of the issues involved in these petitions, learned counsel for the parties advanced their arguments in respect of SBCWP No. 9914/2012 (the lead case). 5. Learned counsel for the plaintiffs-petitioners submits that the plaintiffs-petitioners prayed in the aforementioned suit that the 2 bighas of land, which has been sold in their favour through defendant No. 13, a power of attorney holder of defendant No. 14, and thus, the plaintiffs/petitioners are in lawful possession of the said land since then. Learned counsel thus submits that the subsequent sale deed dated 28.05.2008 executed in respect of the disputed land, in favour of other persons, is null and void in the eye of law. 6. Learned counsel for the plaintiffs-petitioners further submits that subsequent to a written statement dated 15.07.2009 filed by the respondents-defendants in response to the aforementioned suit filed by the plaintiff-petitioners, an amended written statement was also filed by defendants No. 4, 5, 9 & 10 on 04.01.2011 stating therein that the earlier written statement was filed on their behalf by misleading them. 7. 7. Learned counsel for the plaintiffs-petitioners also submits that on 16.09.2011, an application under Order 6 Rule 17 CPC was also filed for taking the amended written statement on record. Learned counsel however submits that the defendants No. 4, 5, 9 & 10 moved an application on 17.01.2012 before the learned trial court with an averment that they wish to withdraw the amended written statement filed by them on 04.01.2011 as well as the application dated 16.09.2011 under Order 6 Rule 17 CPC, and thus, the same may not be taken on record. 8. Learned counsel for the plaintiffs-petitioners further submits that subsequent to the aforementioned application dated 17.01.2012, respondent No. 4 (defendant) filed another application on 02.02.2012 stating therein that filing of the aforesaid application dated 17.01.2012 seeking withdrawal of the amended written statement was not within her knowledge, and thus, the same was prayed to be treated as null and void. 9. Learned counsel for the plaintiffs-petitioners also submits that on 24.07.2012, respondent No. 4 (defendant) again preferred an application praying therein that the amended written statement filed on 04.01.2011 and the application dated 16.09.2011 under Order 6 Rule 17 CPC for taking the amended written statement on record may be recalled while treating the same as withdrawn, and accordingly, she may be permitted to contest the suit. 10. Learned counsel for the plaintiffs-petitioners further submits the respondent No. 4 (defendant) had alleged that she was being pressurized and coerced by the plaintiffs-petitioners to compromise the matter in their favour. 11. Learned counsel for the plaintiffs-petitioners however, submits that the aforesaid factual matrix clearly shows the ever changing stand of the defendants/respondents, more particularly, in view of the fact that though on all the dates, the defendants-respondents were personally present before the learned trial court, but they did not make any complaint regarding the so called pressure and coercion before the learned trial court, while taking any legal recourse of filing any appropriate application or lodging any FIR in connection therewith; this is more so when no plausible reason has been given by the respondents-defendants. 12. 12. Learned counsel for the plaintiffs-petitioners also submits that the conduct of the defendants-respondents in filing the application after application is contrary to the provisions contained in the CPC, as once any document has been filed by any party, then the said party is required to abide by the same and cannot be permitted to take a different stand, and thus, respondent No. 4 (defendant) was having no lawful right to seek withdrawal/recall of the earlier withdrawal application. 13. Learned counsel for the plaintiffs-petitioners however, submits that the learned trial court, without examining the aforementioned vital aspects, amongst others, relating to conduct of the defendants-respondents, proceeded to allow the application preferred by the respondent No. 4 (defendant) on 24.07.2012 vide the impugned order dated 04.09.2012, while directing that the amended written statement dated 04.01.2011 and the application dated 16.09.2011 under Order 6 Rule 17 CPC be kept in Part-D of the file, while dismissing the same as withdrawn. Learned counsel thus submits that in the aforesaid factual backdrop, more particularly, the ever changing stand of the defendants-respondents, the impugned order dated 04.09.2012 passed by the learned trial court cannot be sustained in the eye of law, as the same is prejudicial to the rights of the plaintiffs/petitioners (pertaining to their lawful possession and ownership of the disputed land). 14. On the other hand, learned counsel for the defendants-respondents submits that the plaintiffs-petitioners were continuously exerting pressure and coercion upon the defendants-respondents to compromise the dispute in favour of the plaintiffs-petitioners, and thus, the defendants-respondents were entitled to take appropriate legal recourse, which they had taken by filing the application(s) in question under the provisions of the CPC. 15. Learned counsel for the defendants-respondents further submits that even if it is presumed that the defendants-respondents were changing their stand again and again, then also it is a matter of record that such stands were taken before passing of any effective order by the learned trial court in any of the application(s) in question. 15. Learned counsel for the defendants-respondents further submits that even if it is presumed that the defendants-respondents were changing their stand again and again, then also it is a matter of record that such stands were taken before passing of any effective order by the learned trial court in any of the application(s) in question. In response to the argument raised on behalf of the plaintiffs-petitioners to the effect that the respondent No. 4 (defendant) was having no legal right to move the application dated 24.07.2012, learned counsel submits that though the disputed land has been put to sale number of times, but since the respondent No. 4 (defendant) was the surviving contestant being the only affected person amongst the purchasers of the disputed land, therefore, she was legally entitled to move the said application, so as to pursue her lawful claim in respect of the land in question. Learned counsel thus submits that the learned trial court was perfectly justified in passing the impugned order. 16. In support of his submissions and the stand of the defendants-respondents, particularly respondent No. 4 (defendant), as affirmed by the learned trial court vide the impugned order, learned counsel for the defendants-respondents relied upon the precedent law laid down by the Hon'ble Supreme Court in Rajendra Prasad Gupta v. Prakash Chandra Mishra & Ors., reported in 2011 (2) RLW 967 (SC), relevant portion of which reads as under: "3. It appears that the appellant was the plaintiff in Suit No. 1301 of 1997 before the Court of Civil Judge (Junior Division) Varanasi. He filed an application to withdraw the said suit. Subsequently, it appears that he changed his mind and before an order could be passed in the withdrawal application he filed an application praying for withdrawal of the earlier withdrawal application. The second application had been dismissed and that order was upheld by the High Court. Hence, this appeal by special leave. 4. The High Court was of the view that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without any order on the withdrawal application. Hence, the second application was not maintainable. We do not agree. 5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. Hence, the second application was not maintainable. We do not agree. 5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application. 6. In Narsingh Das v. Mangal Dubey, (1882) 5 ILR (All) 163 (FB), Mr. Justice Mahmood, the celebrated Judge of the Allahabad High Court, observed:- "Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed." 7. The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena v. Bhim Sen & others, AIR 1966 Allahabad 84 FB, and we agree with this view. 8. Accordingly, we are of the opinion that the application praying for withdrawal of the withdrawal application was maintainable. We order accordingly. 9. In the result, the impugned judgment of the High Court is set aside and the Appeal is allowed. No costs. 10. The suit shall proceed and to be decided on merits, expeditiously." 17. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, this Court finds that though it is apparent on the face of the record that the defendants-respondents, including respondent No. 4 (defendant), moved applications number of times, particularly the application for withdrawal of the withdrawal application followed by the application dated 24.07.2012, but the same cannot be said to be contrary to law, as there is no express bar in filing such application under the provisions of CPC. 18. 18. This Court also finds that since the respondent No. 4 (defendant) was the only actual contestant in the aforementioned suit instituted by the plaintiffs-petitioners and the only affected person amongst the purchasers of the disputed land, therefore, she was lawfully entitled to move the application for withdrawal of the withdrawal application moved by the other defendants, followed by the application dated 24.07.2012, more particularly, in light of the fact that no order was passed by the learned trial court in the earlier application(s) so moved by the respondent No. 4 (defendant) and other defendants; the factum of non-passing of any effective order in the earlier application(s) remains unrebutted on behalf of the plaintiffs-petitioners. 19. This Court is also of the opinion that the provisions of the CPC gives inherent powers to the courts to do justice and every procedure has to be interpreted to mean that every procedure is permitted to be followed by the courts for doing justice, unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted, as held in Rajendra Prasad Gupta v. Prakash Chandra Mishra (supra). 20. Thus, in view of the above, this Court does not find any illegality or perversity in the impugned order passed by the learned court below, so as to make any interference in the said order. 21. Consequently, the present petitions are dismissed. All pending applications stand disposed of.