Punjab-Haryana High Court
Paramjit Singh & Ors vs Sukhwinder Kaur And Ors on 4 November, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CR-7588-2010 (O&M) and another :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
I.
Civil Revision No.7588 of 2010 (O&M)
Date of Decision : 4.11.2014
Paramjit Singh and others
...Petitioners
Versus
Sukhwinder Kaur and others
...Respondents
II.
Civil Revision No.7589 of 2010 (O&M)
Paramjit Singh and others
...Petitioners
Versus
Sukhwinder Kaur and others
...Respondents
CORAM : HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present : Mr. S. N. Chopra and Mr. Rakesh Chopra, Advocates
for the petitioners.
Mr. Baldev Raj Mahajan, Senior Advocate
with Mr. Prateek Mahajan, Advocate,
for respondent No 1.
Mr. S. N. Saini, Advocate,
for respondents No 2 to 5.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
This order will dispose of two revisions preferred under Article 227 of the Constitution, i.e., CR No.7588 of 2010 and CR No.7589 of 2010 by the defendants in the suits as common questions of PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another :2:
law and fact arise in both the cases. Both the suits were instituted by Sukhwinder Kaur etc. who are the respondents in this petition.
In CR No.7588 of 2010, the prayer is for setting aside the order dated 31st May 2010 (P-1) whereby the consolidated suits bearing No.103-T dated 24.4.2009/2000 and Suit No.102-T dated 12.11.98/24.4.2009 both titled 'Sukhwinder Kaur v. Paramjit Singh and others' have been ordered to be withdrawn on an application under Order 23 Rule 1 CPC filed by the plaintiff. The application in opposition of the prayer for withdrawal sans costs filed by the petitioner on 31st May 2010 (P-3) has been dismissed. In CR No.7589 of 2010 the prayer is identical.
That suit also stands ordered to be withdrawn.
The facts leading to the filing of the present petition are as follows: -
Kartar Singh Ex, MLA and his brother Kartar Singh were owners of vast properties. Kirpal Singh distributed the properties owned by him to his legal heirs during his life time. Kartar Singh, brother of Kirpal Singh, died issueless in 1968. Kirpal Singh had two daughters, Bachan Kaur and plaintiff Sukhwinder Kaur. Bachan Kaur died in 1945 pre-deceasing Kirpal Singh. Paramjit Singh, Paramjit Kaur and Amarjit Kaur are daughters and son of Bachan Kaur. Pawanjit Singh is the son of Paramjit Singh defendant No.1 and Manjinder Kaur is the daughter of Amarjit Kaur, defendant No.2. Amarjit Kaur is arrayed as respondent No.10 in the present petition. Sukhwinder Kaur (plaintiff) has two sons Karamvir and Karanvir. They are defendants No.4 and 5 in the suit. Karanvir is married to Lakhwinder who is defendant No.5. They have a PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another :3:
son and daughter namely Sandeep Singh and Amandeep Kaur who are defendants No.6 and 7. Kartar Singh, brother of Kirpal Singh passed away and his estate was inherited by his wife Harbant Kaur which comprised land measuring 771 Kanals 12 Marlas situated in village Jameetgarh, Tehsil Rajpura, District Patiala which was subject matter of the dispute.
Harbant Kaur died issueless and her estate was inherited by Kirpal Singh being her husband's brother, under Section 15 of the Hindu Succession Act, 1956. Mutation of inheritance of Harbant Kaur was entered in the name of Pawanjit Singh son of Paramjit Singh (petitioner) on the basis of a will set up by Paramjit Singh defendant-petitioner in favour of his minor son Pawanjit Singh and a relation Tej Kaur. Kirpal Singh, predecessor-in-interest of the parties, filed civil suit No.170 of 1969 for declaration of being owner in possession of suit property against Tej Kaur etc. incuding Pawanjit Singh, minor son of Paramjit Singh- petitioner No.1. The suit was contested by Paramjit Singh as guardian of minor and the defendants pleaded that Kirpal Singh has not the title in the property as the same has been inherited by Pawanjit Singh etc. on the basis of a testamentary will. The suit filed by Kirpal Singh was decreed by the Court of Sub Judge, 1st Class, Patiala. First Appeal No.117 of 1971 against the above judgment and decree was dismissed by the Additional District Judge, Patiala. Regular Second Appeal was dismissed by this Court. Civil Appeal No.88 of 1979 against the order in second appeal was dismissed by the Supreme Court. Kirpal Singh executed a will bequeathing his entire estate in favour of his wife Sukhwinder Kaur. The PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another :4:
will was deposited with the Registrar, Patiala, under Section 42 of the Registration Act, 1908. Kirpal Singh died when the Civil Appeal No.88 of 1979 filed by the petitioner relating to title to suit property was still pending before the Supreme Court. Mutation No.1393 relating to land measuring 2 Bigha 11 Biswa which was in the nature of residential bara in village Lohsimbly was got sanctioned by the petitioners in favour of all natural heirs of Kirpal Singh though this property had been transferred by Kirpal Singh during his lifetime and occupants were in possession of this property.
On coming to know about mutation No.1393 dated 23rd April 1990, Sukhwinder Kaur widow of Kirpal Singh filed Civil Suit No.395 of 1998 for declaration that the said mutation is illegal, null and void and not binding on her as she has inherited the entire moveable and immovable property belonging to Kirpal Singh, Ex-MLA on the basis of the will dated 18th June 1972. Mutation No.239 relating to property inherited by Kirpal Singh from his sister-in-law Harbant Kaur was sanctioned in favour of all heirs of Kirpal Singh ignoring the will dated 18th June 1972 in favour of Sukhwinder Kaur-plaintiff respondent. Civil Suit No.980 of 2000 was filed by Sukhwinder Kaur-plaintiff respondent for declaration to the effect that she is owner in possession of land measuring 771 Kanals 12 Marlas situated within the revenue estate of village Jameetgarh, Tehsil Rajpura, District Patiala on the basis of the will dated 18th June 1972 and for setting aside mutation No.239 dated 13th December 2000 sanctioned by Assistant Collector 1st Grade, Rajpura in favour of the natural heirs and for permanent injunction restraining the PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another :5:
present petitioners from interfering in her possession in any manner. Sukhwinder Kaur also filed separate appeal against mutation No.239 before the Collector, Patiala. The Collector allowed the appeal on merits filed by Sukhwinder Kaur vide detailed order on the basis of evidence on record including report of Document Expert and held the will dated 18th June, 1972 to be genuine document and ordered mutation to be sanctioned in favour of respondent Sukhwinder Kaur as per the said will. The appeal filed by the petitioners was dismissed by the Divisional Commissioner, Patiala. The revision petition filed by the petitioners being ROR No.345 of 2002 was dismissed by the Financial Commissioner, Revenue. Civil Suit No.720 titled 'Karanvir Singh v. Kirpal Singh' was filed by Karanvir Singh for declaration that he is owner of 289 Kanals 9 Marlas of land detailed in the plaint which is part of land measuring 771 Kanals 12 Marlas inherited by Kirpal Singh from his brother's wife Harbant Kaur. The suit was decreed by the Court of Sub-Judge, 1st Class, Rajpura. Civil Suit No.752 of 2002 titled 'Lakhwinder Kaur & another v. Sukhwinder Kaur' was filed by legal heirs of Karanvir, after mutation proceedings were finalized, for declaration that they are owners of land measuring 289 Kanals 9 Marlas on the basis of decree dated 18th October, 1983 passed in favour of their predecessor Karanvir Singh and mutation of total land in favour of Sukhwinder Kaur is wrong and illegal. The suit filed by Lakhwinder Kaur etc. was decreed by the Court of Sub Judge, 1st Class, Rajpura. The civil suit titled 'Paramjit Singh etc. v. Lakhwinder Kaur etc.' filed by the petitioners along with deceased sister Amarjit Kaur for declaration to the effect that PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another :6:
the judgment and decree dated 18th October 1983 in Civil Suit No.720 dated 29th September 1983 relating to land measuring 289 Kanals 9 Marlas is illegal, null and void and the plaintiffs are co-owners in possession to the extent of ½ share and are entitled to separate possession of ½ share of said land by way of partition. The suit is being contested by the respondents by filing written statement defending the decree in favour of Karanvir Singh and further pleading that Sukhwinder Kaur inherited estate owned by Kirpal Singh on the basis of will dated 18th June 1972 and the plaintiffs are not entitled to any relief. The suit is still pending before the trial Court. Civil Suit No.395 of 1998 and Civil Suit No.980 of 2000 titled Sukhwinder Kaur have been dismissed as withdrawn as she is already in possession of land and mutation in favour of all heirs has been set aside and the appeal and the revision filed by the petitioners have been dismissed and she has become owner in possession of the entire land. No further declaration is required in the matter. The petitioners filed the present Civil Revisions No.7588 and 7559 of 2010 against orders dismissing the suits as withdrawn.
Mr.Chopra appearing for the petitioners submits that the suit was wrongly allowed to be withdrawn without notice or hearing to the defendants. He relies on the single bench ruling of the Madras High Court in Registrar, Manonmaniam Sunderanar University v. Suhura Beevi Educational Trust and others; AIR 1995 Madras 42 to contend that abandonment of suit cannot be practiced with an ulterior motive or oblique purpose behind the back of the defendant and no licence is warranted to claim such a right to the detriment of the defendant. He PARITOSH KUMAR relies on paragraph 11 of the report where it is observed:- 2014.11.10 09:55 I attest to the accuracy and authenticity of this document
CR-7588-2010 (O&M) and another :7:
"Though liberty may lie with the plaintiff in a suit to withdraw or abandon at any time after the institution of the suit, the whole of the suit or part of his claim, yet, in my view, it cannot be considered to be so absolute as to permit or encourage or ratify an abuse of process of Court or fraud to be played upon parties as well as Court. The so called abandonment ought not to be a ruse to get rid of a party but yet to get the same relief prayed for earlier. Even that apart, sub-rule (3) of R. 1 of O. 23, C.P.C. would show that where the plaintiff withdraws or abandons a part of the claim even without permission to lay a fresh suit, he shall be liable for such costs as the Court many award and shall be precluded from instituting any fresh suit in respect of the subject matter or such part of the claim. As noticed earlier, in the case on hand, the 3rd defendant before this Court has already filed its written statement and has also filed its counter affidavit in the injunction application. The petitioner-University has its seat of office at Tirunelveli and it has been dragged by the plaintiff to the Courts at Madras. Therefore, it has every legitimate right to press for costs, even if the plaintiff is desirous of withdrawing its suit or abandoning the claim partly against any one of the parties. Mere abandonment of the party alone without the claim against such party and proper amendment of the plaint would be a trick and amount to deception. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself is no licence to the plaintiff to claim a right to do so to the detriment of the legitimate rights of a party-defendant behind his back and with ulterior motive and oblique purpose and courts could not be held to be powerless to prevent such onslought on the institute of administration of justice." The Madras High Court ruling came in a suit sought to be withdrawn by the University where relief prayed was for declaration of Muslim religious minority status of an educational institution for recognition an admission to educational seats in relation to the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976. It PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another :8:
is Mr. Chopra's contention that abuse of judicial process is writ large in this case and a fraud has been practiced on the defendants by simply withdrawing the suit. Fair judicial process demanded that the petitioners should have been heard before the suit was permitted to be withdrawn notwithstanding liberty was not prayed for to institute a fresh suit on the same cause of action. He submits that the day the plaintiffs withdrew the two consolidated suits on 31st May 2010 without hearing the defendants they preferred an application on the same day stating that due to an interim order defendants 1 to 3 remained restrained from entering into possession and enjoy the usufruct of the suit land to the extent of half share in the suit property. The trial court was reminded that arguments had been heard and written arguments had been submitted by the parties when the suit was permitted to be withdrawn arbitrarily behind the back of the defendants and therefore the withdrawal of the two cases before lunch was malafide and therefore the dismissal of the suit as withdrawn should be with heavy costs. The trial court dismissed the application by a separate order of even date for two reasons as are found in the impugned order; firstly, that since the cases have been dismissed as withdrawn the application should be dismissed, secondly, in the words of the court a quo: "the instant application has no merits and liable to be dismissed. Accordingly, instant application is hereby dismissed and file be consigned to record room". It is urged the first order was ex parte and no acceptable reason was assigned as to why the application for imposition of heavy costs had no merit worth consideration. In absence of reasons the order cannot be sustained as the petitioner had at least a right, when the basic order was passed, to be heard on costs in terms of Order 23 PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another :9:
Rule 1 (4) of the CPC.
On the other hand, it is the contention of Mr. B.R.Mahajan, learned senior counsel for respondent No 1 that the plaintiffs were the masters of their suit and could withdraw it at any time by invoking the provisions of Order 23 Rule 1 of the CPC if they wished to without praying for liberty to file a fresh one on the same cause of action on being satisfied with the existing state of things. The defendants cannot compel an adjudication if they were not prejudicially affected by such withdrawal or abandonment of the suits. They were always at liberty to press for reliefs against the plaintiffs in an independent suit to exert their rights, if any, and to vindicate them in the manner they liked. They filed written statement contesting the suit but did not choose to file a counter claim for it to be treated as a cross-suit which could independently have been tried de hors withdrawal or abandonment of the suit by the plaintiffs. If the plaintiffs pulled the rug beneath the defendants' feet it was legally permissible as they gave up their declaratory rights against the defendants through the process of adversarial adjudication. There is merit in the submissions of Mr. Mahajan that the suit could legally be withdrawn by his clients without affecting any independent rights to property that the petitioners might possess and were free to litigate to establish those rights, if any, had they brought a suit. As defendants they could not claim relief in absence of a counter claim.
To substantiate his contentions the learned senior counsel relies on a selection of judgments in support of withdrawal of suit without endangering any independent right of the defendants they may PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 10 :
possess in seeking reliefs against the plaintiffs in a separate action subject of course to legal any bars in claiming them on merits. These are:
-(1) Anil Dinmani Shankar Joshi and another v. Chief Officer, Panvel Municipal Council, Panvel and another; AIR 2003 Bombay 238; (2) Bijivemula Venkata Subba Reddy v. Jangam Satya Babu; 2010 (6) R.C.R. (Civil) 364; (3) Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and others; (2012) 1 SCC 455: 2011 (4) RCR (Civil)
903. In case (1) the court has taken the well settled view that a plaintiff has an unconditional right to withdraw his suit unconditionally and the court cannot refuse permission to withdraw on the ground that the suit against whom it is brought is a necessary party. Abandonment is complete as soon as the plaintiff informs the court. No order of the court is necessary though court often passes a formal order recording the abandonment of the whole or part of the suit. In saying so the Bombay High Court relied on the authoritative ruling of the Supreme Court in Shiv Prasad v. Durga Prasad reported in (1975) 1 SCC 405 observing in paragraph 12 of the report that withdrawing a suit is a unilateral act which is sufficient by itself for which no order is necessary. In case (2), the Andhra Pradesh High Court has observed that a suit can be withdrawn at any stage. The only restriction is that it cannot permit a fresh suit on the same cause of action and subject matter unless such a right is reserved and court accords permission to return to court for the same relief. In case (3) supra the Supreme Court laid down the principles of award of costs under section 35, 35-A or 35-B of the Code advocating awarding of realistic costs which should be in accordance with law. The PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 11 :
Court held that "As the law presently stands, there is no provision for award of 'actual costs' and the award of costs will have to be within the limitation prescribed by section 35", [CPC]. This ruling has been carefully and studiously relied on by Mr. Mahajan to avoid any misreading of certain observations made in Salem Advocates Bar Association v. Union of India, (2005) 6 SCC 344 which are to the effect that :-
"When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow."
These observations were reconciled in Sanjeev Kumar Jain in the following terms:-
"We are afraid that the respondents and the High Court have misread the observations of this Court in Salem Advocates Bar Association. All that this Court stated was that the actual reasonable cost has to be provided for in the rules by appropriate amendment. In fact, the very next sentence in para 37 of the decision of this Court is that the High Courts should examine these aspects and wherever necessary, make requisite rules, regulations or practice directions. What has been observed by this court about actual realistic costs is an observation requiring the High Courts to amend their rules and regulations to provide for actual realistic costs, where they are not so provided. We PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 12 :
have noticed that section 35 does not impose a restriction on actual realistic costs. Such restriction is generally imposed by the rules made by the High Court. The observation in Salem Advocates Bar Association is a direction to amend the rules so as to provide for actual realistic costs and not to ignore the existing rules. The decision in Salem Advocates Bar Association is therefore of no assistance to justify the award of such costs. The Rules permit costs to the awarded only as per the schedule. Therefore, as the Rules presently stand. Whatever may be the `actual' expenditure incurred by a party, what could be awarded as costs is what is provided in the Rules."
Imposition of costs is however a matter mostly of judicial discretion exercised by the trial court in absence of codified High Court rules as to costs but that does not mean that permission to withdraw a suit will not be granted at any cost. To this extent I think the defendants can well have a say in the matter. But they have no right to oppose withdrawal of suit. Lastly, Mr Mahajan submits that defendants in their application filed on 31st May 2010 did not speak a word on their absence in the pre-lunch session when the first order was passed. They did not pray for recall of the order for violation of principles of natural justice but confined their claim for heavy costs.
On the point of costs I would come to a little later in the discussion while dealing with Mr. Chopra's contention on defendants' right to receive costs on withdrawal of suits, as provisionally framed in the interim order passed by this Court on 6th May 2013, for an answer. To place the order in quotes:-
"Learned counsel for the petitioners has challenged the impugned order. He submits that this matter remained pending in the trial court for more than a decade. The plaintiffs/respondents were deprived of their right to PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 13 :
property during the pendency of the suit for the last 12 years. On 31.5.2010, the statement was made before the court to withdraw the suit which was promptly allowed by the court below. According to him, petitioners were entitled to damages. He further submits that infact exemplary costs deserve to be imposed on the plaintiffs for depriving them of mesne profits for the period of 12 years. Apart from contention raised by Mr. Chopra, this court also intends to consider the issue whether plaintiffs are liable to pay costs of proceedings as trial court remained occupied with the matter for more than a decade, Mr. Mahajan, however, prays for time to apprise on the aforesaid issues."
To return to the issue of withdrawal of suit unilaterally the Madras High Court judgment relied on by Mr. Chopra is of little help to him as it is distinguishable on facts. In the present case, fraud as such does not appear to have been practiced or is discernable apparent on the face of record or of any abuse of the judicial process of the court has taken place in simply withdrawing the suits when the right is guaranteed by Order 23 Rule 1 when withdrawal is without leave to bring fresh suits. The plaintiffs acted within their rights in doing so which may not be faulted. The short complaint made by defendants 1 to 3 in their application dated 31st May 2010 was that since the cases had reached near conclusion it was mala fide on the part of the plaintiffs to have withdrawn the suits at the juncture it rested. They made no further complaint except praying for heavy costs against the plaintiffs "in view of the produce of the land". But they did pray for heavy costs to be imposed by articulating the basis of establishing those rights. The application may have been drafted and filed hurriedly with little reaction time left at their command with court hours drawing to a close but which PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 14 :
were capable of being explained later on, had a fair chance been given to them.
Be that as it may, on the question of costs I have had a rethink after dismissing the petition in toto and thus have put up the case for re-hearing, nagged by the thought that the two consolidated suits were put through the grinding mill of trials collecting evidence adduced by both the parties and closing it on 17th March 2010 after engaging the trial court for too long with no net result in terms of an anticipated adjudication of the rights of parties. It was the plaintiffs after all who filed an application on 19th April 2010 for examining a document expert and thereafter bunged another application for summoning the original will for further evidence. The defendants contested both the applications by filing replies in opposition. The applications were dismissed by the trial court 17th May 2010 and 21st May 2010 respectively. It is said that thereafter the matter was heard on several dates where after plaintiffs proclaimed that they wished to seek remedy by way of revisions before the High Court against the orders dismissing the applications. Consequently, on the request of plaintiffs the cases were adjourned to 31st May 2010 to await orders which may be passed in the proposed revisions. But instead, the applications were presented praying for withdrawing the suits and orders were obtained on those applications granting leave to withdraw them. This was allowed after a long drawn out legal battle which must have put the defendants to considerable expense, all for nothing. From this Court can safely assume that the defendants suffered a colossal waste of time, lost effort and money for which they PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 15 :
may deserve to be compensated by costs under Order 23 Rule 1 (4) of the Code as part of plaintiffs' liability arising on abandoning the suits at the fag end of the journey. Therefore, the discretion exercised by the trial court in passing the second order on the application presented for imposing heavy costs on plaintiffs without passing a reasoned order to support the summary rejection was not in proper exercise of jurisdiction and the same suffers from material irregularity as there has been a failure to exercise jurisdiction vested in the court in terms of Order 23 Rule 1 (4) of the Code. To this extent Mr. Chopra may not be wrong in his submission that his clients deserved a fair consideration on the application which could not have been dismissed in a summary fashion without recording supporting reasons especially when the basic order was passed before lunch session in the absence of counsel for the defendants 1 to 3. If the application under Order 23 Rule 1 CPC was presented on 31st May 2010 [with advance copy to the opposite counsel; which is not clear from the present record, or proper notice issued thereon] then it is even a more serious matter which goes to the root of jurisdiction and clearly in favour of the defendants for the limited purposes of the prayer made in the application for a chance to establish their right to costs by a fair opportunity of hearing and room to show proof of the claims made in the application. At least a reasonable notice ought to have been issued on the application to the opposite party instead of taking up an unlisted, unnumbered application presented on the dais after lunch, compelling an espresso adjudication faster than you can say Jack Robinson without understanding the implications of such an PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 16 :
unjudicial reaction closing the case from all ends by inflicting a sudden death. Merely because the presence of both the counsel is recorded in the second order would not make the order any more sacrosanct. The order leaves a bad flavour in the mouth as it was passed rather abruptly without paying due regard to the mandatory provisions of Order 23 Rule 1 (4) of the Code which confer valuable rights on a party to receive compensatory costs upon withdrawal of suit. The words "shall be liable for such costs" used in Order 23 Rule 1 (4) of the Code are salutary rights which are invaluable in nature and cannot be ignored in a case of this kind which was on the last legs of its journey when it was terminated by the plaintiffs. When the words "shall be liable for such costs" are followed by "Court may award" it refers only to actual assessment of costs by court and its quantification in terms of money which may become due and payable on adjudication. The general rule is that costs follow the event. Although quantum of costs lie in the discretion of the court but Order 23 Rule 1 (4) CPC creates a presumption that the costs will "follow the event". It then becomes a reasonable expectation of the suffering party. These sundry litigation costs and miscellaneous expenses incurred by the defendants defending the suits albeit withdrawn at the stage of culmination would remain eminently quantifiable in the objective satisfaction of the trial court exercising discretion judicially to a somewhat higher degree than if the suits were at the commencement of the trial or before material evidence was adduced by one or both the parties when court permitted suits to be withdrawn without leave and to impose costs as explained by the Supreme Court while dealing with PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 17 :
sections 35, 35-A and 35-B of the Code in Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and others, supra cited so fairly by Mr. Mahajan though in his favour. I think that the stage of suit is a relevant factor under Order 23 Rule 1 (4) in making an order as to costs.
Keeping in view the reasons recorded above, the second impugned order in the opinion of this court miserably fails the tests of being a legally sustainable judicial order and should not be left to survive if the ends of justice are to be served and to avoid a miscarriage of it. This chapter of the book cannot be foreclosed by the High Court on its revision side by putting its imprimatur on the second impugned order without an adjudication taking place on the issue of costs in the court a quo.
Consequently, interference against the first impugned order permitting the plaintiffs to withdraw the suit without liberty to file a fresh one on the same cause of action is not called for on the revision side of this Court under Article 227 of the Constitution of India for the passing of which no hearing was imperatively required and when not granted is not an Achilles' heel in view of the protective binding judicial precedents on the point cited at the bar on behalf of the respondents. Though, at the same time, I would say as a general cautionary rule that hearing counsel is a far better thing to do than not affording an effective opportunity of hearing to the aggrieved party or counsel representing them before making the final order. However, it cannot be said that the Court a quo exercised its jurisdiction improperly in making the first order save and limited to the extent of withdrawal of suit under Order 23 Rule 1 of the PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document CR-7588-2010 (O&M) and another : 18 :
CPC. But the second order is found legally unsustainable and does not deserve to stand. The order requires to be re-examined by the court a quo on legal principles attaching to Order 23 Rule 1 (4) of the Code.
Accordingly, the revisions are dismissed qua withdrawal of the two consolidated suits and the first order in each of the cases is upheld. But to the extent of abject non-consideration of imposition of costs under Order 23 Rule 1 (4) of the Code, the second order passed on the same day i.e. 31st May 2010 is not legally sound and is therefore set aside and the case is remanded to the trial court for passing a fresh order on the application in accordance with law. Hence, both the applications dated 31st May 2010 are restored to their original number. Parties are directed to appear before the trial court on 15th November 2014 for further proceedings for the limited purposes as explained above. No costs are ordered as at present in these two cases which are left open to be decided in the light of the orders as may be passed in the remand proceedings for which parties shall have liberty to apply, if need be.
(RAJIV NARAIN RAINA) JUDGE November 4, 2014 Paritosh Kumar PARITOSH KUMAR 2014.11.10 09:55 I attest to the accuracy and authenticity of this document