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2022 DIGILAW 2694 (RAJ)

Kanta Devi v. Shri Rameshwar Prasad

2022-11-02

SUDESH BANSAL

body2022
ORDER 1. The instant revision petition has been filed under Section 115 CPC by petitioners-plaintiffs, assailing the order dated 15.7.2022 passed by the Court of Civil Judge and Metropolitan Magistrate, South, Jaipur Metropolitan-I whereby their application dated 28.5.2022 filed under Order 23 Rule 1 CPC seeking withdrawal of civil suit for eviction, has been dismissed. 2. Heard counsel for both parties, perused the impugned order and record. 3. From perusal of record, it appears that one civil suit for eviction in respect of suit property bearing Municipal No.1403 sitauted in City Jaipur, Chowkdi Vishveshwarji, Tarachand Nayabki Gali, Jaipur was filed on the ground of bonafide and reasonable necessity. Respondent-defendant Rameshwar Prasad admitted his tenancy stating that the premise was taken on rent from one Pravin Kumar son of Late Rajendra Prasad and contested the suit. During pendency of suit, petitioners-plaintiffs jointly moved one application under Order 23 Rule 1 CPC supported with affidavit of all plaintiffs stating that plaintiff No.1/1 Mahendra Kumar Agarwal, plaintiff No.1/2 Ashok Kumar Agarwal, plaintiff No.2 Smt. Sushila Devi, Plaintiff No.3 Smt. Saroj Devi have transferred their rights in favour of plaintiff No.4 Santosh Devi and she is the sole owner/landlord of suit property. It was stated in the application that defendants have become tenant of plaintiff No.4 and keeping legal rights of plaintiff No.4 intact in respect of suit property, the suit may be allowed to be withdrawn. It may be noticed that no permission for filing a fresh suit was prayed for and plaintiffs sought to withdraw their present eviction suit. 4. Defendants filed reply to the application and denied transfer of rights of suit property in favour of plaintiff No.4 and stated that no details have been mentioned in the application in this respect. It was stated that plaintiffs No.1/1 and 1/2 have no share in the suit property. It was also contended that plaintiffs’ suit is not sustainable in the eye of law and special cost of Rs.55,000/- was claimed. 5. Learned trial Judge vide impugned order dated 15.7.2022 dismissed the application seeking withdrawal of plaint by petitioners-plaintiffs, hence, this revision petition is filed. 6. At the outset, it appears that learned trial Judge has not adverted to the provision of Order 23 Rule 1 CPC which envisages provision in respect of withdrawal of suit or abandonment of part of claim. Learned trial Judge vide impugned order dated 15.7.2022 dismissed the application seeking withdrawal of plaint by petitioners-plaintiffs, hence, this revision petition is filed. 6. At the outset, it appears that learned trial Judge has not adverted to the provision of Order 23 Rule 1 CPC which envisages provision in respect of withdrawal of suit or abandonment of part of claim. Sub-Rule 1 of Rule 1 envisages that after institution of suit, plaintiff may abandon his suit whole or in part at any time and in case minor, abandonment is permissible with leave of the Court. Sub-Rule 2 speaks about application for leave, in case of abandonment by and on behalf of minor. Sub-Rule 3 speaks about granting permission for withdrawal of the suit wholly or partly with liberty to institute a fresh suit in respect of subject matter of suit. Sub-Rule 4 states that where plaintiff abandon or withdraws his suit, he shall be precluded from instituting any fresh suit in respect of such subject matter on the cause of action. Sub-Rule 5 deals with where there are more than one plaintiff. For ready reference, the relevant portion of provision which extracted hereunder: "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 extended, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave..... (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 Subrule (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 precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule......" 7. The Hon’ble Supreme Court, in case of K.S. Bhoopathy Vs. Kokila [ (2000) 5 SCC 458 ] has discussed the provision of Order 23 in detail and has expounded the proposition of law that held plaintiff can abandon a suit or withdraw his claim as a matter of right without permission of Court but in that case he will be precluded from suing action on the same cause of action. But in case, plaintiff seeks withdrawal of his suit under Sub-Rule 3 of Rule 1 of Order 23, Court may grant permission for withdrawal subject to his satisfaction with liberty to sue afresh on the same cause of action. The relevant portion of judgment, para 12 reads as under:- "12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts: (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC." This judgment has been followed in case of Aurag Mittal Vs. Shaily Mishra Mittal [ (2018) 9 SCC 691 ]. 8. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC." This judgment has been followed in case of Aurag Mittal Vs. Shaily Mishra Mittal [ (2018) 9 SCC 691 ]. 8. In the case at hand, learned Senior Counsel appearing for petitioners-plaintiffs submits at bar that plaintiffs are not seeking any liberty to institute a fresh suit and they are seeking permission to withdraw their suit simpliciter. He submits that in such situation, defendants have no right to resist plaintiffs from exercising their right of withdrawal, abandonment of suit as enshrined under Order 23 Rule 1 (4) CPC. 9. Counsel for respondents is not in a position to oppose the prayer of counsel for petitioners and submits that the Court may pass appropriate orders subject to payment of cost. 10. Having considered facts and circumstances of present case, this Court is of the considered opinion that plaintiffs have an absolute right to withdraw/ abandon their suit as a whole or in part, at any time after institution of the suit and defendants, at the most may claim some cost only but cannot oppose the prayer of plaintiffs for withdrawal/ abandonment of their suit without seeking any liberty to file afresh. It is needless to observe that in such a withdrawal, plaintiffs would be precluded from instituting a fresh suit on the same cause of action. Therefore, this Court without exercising any opinion on merits in respect of rights of either of parties, finds no reason to decline the prayer of petitioners-plaintiffs seeking withdrawal of their civil suit for eviction. 11. As far as defendants are concerned, none of their rights would be prejudiced in any manner by allowing the withdrawal of present suit. Nonetheless, this Court deems it just and proper to award a cost of Rs.5000/- in favour of defendants. 12. As a result, the revision petition is allowed. The impugned order dated 15.7.2022 is quashed and set aside. The Civil suit No.311/1991 titled as Smt. Kanta Devi & Ors. Vs Sh. Rameshwar Prasad & Ors. is allowed to be withdrawn subject to payment of cost of Rs.5000/- payable to defendants. 13. Plaintiffs would pay the cost to defendants before the trial Court and in case defendants do not accept, would be free to deposit before the Court. The Civil suit No.311/1991 titled as Smt. Kanta Devi & Ors. Vs Sh. Rameshwar Prasad & Ors. is allowed to be withdrawn subject to payment of cost of Rs.5000/- payable to defendants. 13. Plaintiffs would pay the cost to defendants before the trial Court and in case defendants do not accept, would be free to deposit before the Court. Thereafter, the trial Court on the basis of this order shall pass formal order to dismiss the present suit as withdrawn. 14. Record of the trial Court be sent back forthwith.