Gujarat High Court
Sanjaybhai Lakhabhai Oderdra vs Mineshbai Bhogilal Patel on 2 September, 2023
NEUTRAL CITATION
C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3234 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SANJAYBHAI LAKHABHAI ODERDRA
Versus
MINESHBAI BHOGILAL PATEL & 2 other(s)
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Appearance:
MR DIGANT B KAKKAD(6523) for the Petitioner(s) No. 1
MS KOMAL D KHATRI(12176) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
VIRAL K SHAH(5210) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/09/2023
ORAL JUDGMENT
Rule. Learned Advocate Mr.Viral K Shah, for respondent No.1 waives service of notice. Respondents No.2 and 3 though served have chosen not to appear.
2. Order dated 11/12/2021 passed below Exh.1 in Special Page 1 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023 NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined Civil Suit No.117 of 2020 by the learned Principal Senior Civil Judge, Ahmedabad (Rural) is sought to be challenged in the present petition under Article 227 of the Constitution of India whereby the plaintiff has been permitted to withdraw the suit unconditionally.
3. The facts of the case in nutshell are that respondents No.2 and 3 and their family are join owners of NA Land bearing revenue Block / Survey No.43 ad-measuring area of 1-44-67 H.Acre.Sq. Mtrs., of TP Scheme No.204, Final Plot No.235 ad- measuring 8680 square meters and block / survey no.19 ad- measuring area about 1-28-48 H-Are - Sq. Mtrs., of TP Scheme No.52, Final Plot No.20 ad-measuring area about 7709 sq. mtrs., situated at Village Ambli, Tal. Ghatlodiya, Sub-District / District : Ahmedabad. Respondents No.2 and 3 appointed the petitioner as their power of attorney holder by giving all the power in respect of the suit land and other lands and while doing so petitioner credited Rs.10,00,000/- each in the account of respondent Nos.2 and 3. It is the case of the petitioner that after execution of the said power of attorney, petitioner executed an agreement to sell dated 18/12/2019 of the suit land in favour of respondent no.1 in the total sale consideration of Rs.1,00,00,000/-. Respondent no.1 preferred Special Civil Suit No.117 of 2020 for specific performance of the agreement to sale dated 18/12/2019 alongwith permanent injunction over the suit land before the Court of learned Principal Senior Civil Judge, Ahmedabad. The petitioner filed written statement in the said suit and sought rejection of the suit by raising various grounds therein.
Page 2 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined 3.1 However, thereafter on 10/12/2021, respondent no.1 has filed pursis vide Exh.20 in the said suit for withdrawal of the said suit unconditionally wherein respondents no.2 and 3 have made their consent endorsement for allowing the said pursis and ultimately by the impugned order, the learned Court has granted permission to the plaintiff to withdraw the suit unconditionally. The said order has been challenged by filing present petition.
4. Learned Advocate for the petitioner Mr.Digant B Kakkad submits that petitioner is the defendant No.3 in the suit. He is power of attorney holder of defendant nos.1 and 2 and in his absence the plaintiff has withdrawn the suit unconditionally. He would submit that defendant no.3 was intended to transpose as plaintiff in the suit; but before he avail his right, learned Court below hurriedly allowed the plaintiff to withdraw the suit. Referring to O.23 R.1(A) of the CPC, he would submit that the person who is arraigned as defendant has right to apply to be transposed as a plaintiff under O.1 R.10 and the Court is required to consider such application having due regard to the question whether the applicant has substantial question to be decided as against any of the other defendants. He would further submit that in a case where plaintiff is seeking withdrawal or abandon of the suit, the concerned defendant is require to be heard as he would wishing to transpose as a plaintiff. He would further submit that since the defendant no.3 was not heard by the learned Court below while permitting the plaintiff to withdraw the suit unconditionally, a serious error has been committed by the learned Court below which has prejudiced the substantial right of the defendant no.3. Upon such submission, learned Advocate would submit that the present petition may be Page 3 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023 NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined allowed.
5. On the other hand, learned Advocate for the respondent would submit that petitioner-defendant no.3 was the power of attorney holder of the defendant no.1 and 2 who has no independent locus to be appeared in the matter. He would submit that he is just an agent of the master in view of the Contract Act. He would further submit that defendant nos.1 and 2 who are master have slated no objection and also passed the endorsement on the said application indicating no objection for withdrawal of the suit. Under such circumstances, defendant no.3 who was just power of attorney holder of defendant nos.1 and 2 also arraigned in that capacity in the suit as defendant no.3. It is also submitted that defendant no.3 has no independent interest in the suit. Yet, even in absence independent right, defendant no.3 by filing this petition objected to grant of unconditional withdrawal of the suit. He would further submit that the learned trial Court has permitted the plaintiff to withdraw the suit unconditionally, which is his unfettered / unqualified right given under O.23 R.1 of the CPC. Thus, he submits that no error has been committed by the learned trial Court and therefore to dismiss the petition.
6. Heard learned Advocates appearing for the respective parties.
7. In present case, defendant no.3 of the suit objected to the unconditional withdrawal of the suit filed by the plaintiff; thus, let refer governing provision, being O.23 R.1 of the CPC which reads as under:
Page 4 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined "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."
8. The above rules provide unfettered and absolute right to the plaintiff to withdraw the suit at any time after its institution. The only distinction is that if the suit is instituted by the minor, it can be withdrawn with the leave of the Court. In all other cases, the plaintiff has unfettered and absolute right to withdraw the suit. The defendant at the most can object for cost he has incurred for entering into the dispute; but by no means the defendant can object the plaintiff in withdrawing the suit.
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9. At this juncture, with profit the observations and findings of the Hon'ble Apex Court in the case of Anil Kumar Singh Versus Vijay Pal Singh [2017-AIR(SC)-0-5587] may be referred to more particularly paragraph 19 to 24 which reads thus:
"20. If the permission to withdraw the suit is granted under sub-rule(1) of Rule 1 read with sub-rule (4)(a) or (b) then in such event, the plaintiff would only be liable to pay cost to the defendant. However, in such situation, he is precluded from filing a fresh suit in respect of the same subject matter or part thereof.
21. Sub-rule (5) of Rule 1 says that, if there are more than one plaintiff then unless all the plaintiffs give consent to withdraw the suit, the permission to withdraw the suit cannot be granted under sub-rule (1) or (3).
22. Coming to the facts of the case on hand, we find that the appellant (plaintiff) had applied for withdrawal of his suit under Order 23, Rule 1 . The Trial Court acceded to the prayer and accordingly granted permission to the appellant to withdraw the suit on payment of cost of Rs. 350/- to the defendants. This the Trial Court did by taking recourse to the powers conferred under Order 23 sub-rule (4) (a) of Rule 1.
23. The effect of this grant of permission to the appellant was that though he was allowed to withdraw the suit but was not permitted to file a fresh suit on the same subject matter. Since only one person had filed the suit and, therefore, sub-rule (5) of Rule 1 was not attracted.Page 6 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023
NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined
24. In our considered opinion, when the plaintiff files an application under Order 23, Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in sub-rule (4)."
To be noted that, in unconditional withdrawal even reasoned order of the Court giving permission to withdraw the suit is not required.
10. The observations of this Court in case of Narharibhai Chaturbhai Patel Versus Bharatbhai Chimanlal Patel [2022- GLR-4-2514] is also relevant. Paragraph 15 to 19 reads thus:
"15. In these circumstances, the question which requires consideration is whether the original plaintiff has absolute right to withdraw the suit unconditionally and whether the defendants no.1 and 2 are entitled to apply under Order 23 Rule 1(A) of the Code to transpose them from defendants to plaintiffs to the suit.
16. Hon'ble Supreme Court in case of "Ms. Hulas Rai Baij Nath v. Firm K.B. Bass and Co., reported in 1968 SC 111 has held that Order 23 Rule 1 Sub-rule (1) of C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit sought under Sub-rule (2) of the Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in Page 7 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023 NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined respect of the subject matter under sub-Rule (3) of the Rule. It was further held by the Hon'ble Apex Court in the said judgment that there is no provisions in the Code, which requires to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It has also been held that different considerations may arise where the set-off may have been claimed under Order 8 of Civil Procedure Code, or a counter claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.
17. Considering the aforesaid judgment of Hon'ble Apex court, this Court in the judgment reported in 2005 (1) GLR Page 116 (Patel Dineshbhai Mohanbhai v. Naranbhai Ramdas (Decd.) Through Legal heirs) , in para 46 also held that the plaintiff has got absolute right to withdraw his suit unconditionally. It is required to be noted that it no doubt that respondent no.1 herein has also filed substantive civil suit for specific performance of an agreement executed between the parties on 23.03.2002 and is still pending.
18. In the aforesaid suit, even the plaintiff of the present suit as well as respondent no.1 are the party defendants. It is definite to appreciate that reasons given by the trial court wherein it is stated that by giving said purshish Ex. 124, all are the question be determined so it cannot be multiplicity of proceedings, and therefore, it is not proper to grant withdrawal without determining the aforesaid question between the parties are not correct. 19. It also required to be noted that if the plaintiff has settled his dispute with the original defendant and if the Page 8 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023 NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined plaintiff wants to withdraw the suit unconditionally, the court has no jurisdiction to refuse such unconditional withdrawal, unless there is any counter claim or set-off claimed by the defendant in the said suit."
11. What perceives from above case law that withdrawal of suit is unqualified right of the plaintiff. It cannot be objected by defendant in absence of proving any right vested upon him. To be noted that suit can be withdrawn unconditionally, as a matter of right, if no varied right of defendant is accrued.
12. In the present case, learned Advocate for the petitioner submits that the defendant no.3 was intending to be transposed as plaintiff and therefore he was required to be heard. What appears that when the suit was permitted to be withdrawn by the learned Court below no such application was on record. What further appears that for the purpose of transposing as a plaintiff, such defendant is required to show that his interest is identical to the plaintiff and it is against rest of the defendant. The defendant cannot transpose him to be a plaintiff only upon his wishes to be so. He has to show that his interest is identical to the plaintiff. Moreover, in absence of the application before the learned Court below for transposition to be a plaintiff the submission that the defendant no.3 was intending to transpose as a plaintiff appears to be an afterthought and developed for sake of this writ petition. Even otherwise, as held in above judgment, the issue of transposition would come subsequent to withdrawal of the suit.
13. What more requires to be recorded is that defendant no.3 Page 9 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023 NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined in the suit was a power of attorney of the defendant nos.1 and 2. The Contract Act defines the relationship between the master and the agent. The agent cannot put interest against the principal. In fact, agent cannot have independent interest or right so he has no separate and independent locus standi. His locus is coming and falling from the master. Relationship between principal and agent is of fiduciary relationship. Agent cannot claim stand adverse to principal. Perusal of the petition indicates that the petitioner being agent intended to proceed something contrary to the interest of the principal which is not permissible by law.
14. It appears that present petitioner has clearly misused the process of law. In case on hand, defendant no.3, who is power of power of attorney holder of defendant nos.1 and 2 acted adverse to his interest. Though plaintiff has unqualified right to withdraw the suit unconditionally, he has obtained no objection from the defendant nos.1 and 2 being principal, for conditional withdrawal of the suit. Defendant No.3 as an agent filed the petition to challenge order of granting unconditional withdrawal of the suit. This act on behalf of the petitioner is adverse to the defendant nos.1 and 2. The fact discerned that present writ petition is filed with oblique and rather ulterior view. The process of the Court is blatantly misused. This is a systematic and designed attempt to harass the original plaintiff. It could be seen playing with judicial process. Such attempt has to be seen seriously and to be thrown out with cost.
15. In Dnyandeo Sabaji Naik Versus Pradnya Prakash Khadekar [2017-SCC-5-496], the Hon'ble Apex court deprecating the frivolous Page 10 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023 NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined litigation insisted for imposing exemplary cost. Observations and finding in paragraph 13 and 14 are relevant which reads thus:
"13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.
14. Courts across the legal system - this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional Page 11 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023 NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.
16. Thus, the petition lacks merits, and hence rejected with the cost quantified at Rs.15,000/- (Rupees Fifteen Thousand Only) which shall be deposited by the petitioner with the District Legal Services Authority, Ahmedabad (Rural) within seven days from today; failing which the concerned Court is directed to issue the Jangam Milkat Warrant against the present petitioner for recovery of the amount of cost. Alternatively, the concerned Page 12 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023 NEUTRAL CITATION C/SCA/3234/2022 JUDGMENT DATED: 02/09/2023 undefined Court shall issue the certificate to the Collector to recover the amount of costs as arrears of land revenue. Notice is discharged.
(J. C. DOSHI,J) sompura Page 13 of 13 Downloaded on : Sat Sep 16 15:45:31 IST 2023