Gujarat High Court
Tulebahadur Mahavir Prasad Since Decd. ... vs Dineshbhai Shivlal Patel & 6 on 13 August, 2014
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/14955/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14955 of 2010
For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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TULEBAHADUR MAHAVIR PRASAD SINCE DECD. THROUGH HEIRS
Versus
DINESHBHAI SHIVLAL PATEL & 6
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Appearance:
MR KASHYAP R JOSHI, ADVOCATE for the Petitioners
MR NIKHIL S KARIEL, ADVOCATE for the Respondent(s) No. 7
RULE SERVED BY DS for the Respondent(s) No. 1 - 3 , 4.1- 4.6,5-6
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 13/08/2014
ORAL JUDGMENT
1. In this petition filed under Article 226/227 of the Constitution of India, the petitioners- original plaintiffs have challenged the order dated 11.8.2010 passed below application Exh.66 (withdrawal pursis) and the order dated 12.8.2010 passed below application Exh.62 (application for joining party) in Regular Civil Suit No.161 of 2009.
2. The petitioners who claim to be the co-owners of the land bearing Block Nos.1336 and 1390 filed Regular Civil Suit No.161 of Page 1 of 12 C/SCA/14955/2010 JUDGMENT 2009 seeking to declare that the sale deed dated 1.5.2009 executed by the defendant Nos.1 and 3 in favour of defendant No.4 and confirmation deed dated 14.7.2009 executed by defendant No.6 in favour of defendant Nos.1 to 3 and confirmation deed dated 14.10.2009 executed by the defendant No.5 in favour of defendant Nos.1 to 3 are not binding to the plaintiffs. The plaintiffs have also prayed for permanent injunction restraining the defendants from developing the land under the above-said sale deeds or from dealing with or creating any charge on the said lands.
3. It appears that on account of out of Court settlement between the plaintiffs and the defendants, the plaintiffs submitted the withdrawal pursis at Exh.66 for disposal of the suit stating that on account of settlement in respect of the suit property, the suit was not required to be prosecuted further.
4. It further appears that on the same day, i.e. on 11.8.2010, the respondent No.7 preferred an application at Exh.62 to join as plaintiff in the suit on the ground that the plaintiffs executed agreement to sell on 27.4.2009 with possession in respect of their shares in the property by accepting different amounts from him as stated in the application and the plaintiffs intended to sell the suit land to the defendants. If the plaintiffs are permitted to withdraw the suit, it will affect his rights.
5. Learned Judge passed order dated 11.8.2010 below withdrawal pursis at Exh.66 refusing the request of the plaintiffs to withdraw the suit on the ground that the application Exh.62 was allowed and third party was ordered to be joined in the suit.
6. By the order passed below Exh.62 dated 12.8.2010, the application Exh.62 was allowed and third party was permitted to be joined as plaintiff in the suit.
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7. Learned advocate Mr. Kashyap Joshi appearing for the petitioners submitted that it was absolute right of the plaintiffs to withdraw their suit unconditionally and therefore, withdraw the suit ought not to have been refused by the learned Judge. Mr. Joshi submitted that the learned Judge committed serious error in permitting third party to join as plaintiff in the suit though presence of the third party is not required to decide the controversy in the suit. Mr. Joshi submitted that the only right of respondent No.7 was to get agreement to sell enforced in respect of the share of the plaintiffs in the suit land but on the basis of such agreement, the respondent No.7 would not become necessary party to the suit. Mr. Joshi submitted that in any case, joining of third party as plaintiff against the wish of the plaintiffs was not at all permissible, especially when law permits only transposition of any of the defendants as plaintiff. Mr. Joshi submitted that the suit was not sought to be withdrawn on the basis of any compromise deed between the parties so as to invite order of the Court to declare the compromise as lawful and to pass decree in terms of the compromise. Mr. Joshi submitted that neither was it open to the learned Judge to refuse the plaintiffs to withdraw their suit nor was it permissible for third party to join as plaintiff in the suit. Mr. Joshi, therefore, submitted that the learned Judge has exceeded in his jurisdiction in passing the impugned orders below application Exh.62 and below the withdrawal pursis Exh.66.
8. As against the above arguments, learned advocate Mr. Nikhil Kariel appearing for respondent No.7 submitted that since the plaintiffs wanted to withdraw the suit on the ground that there was settlement between the parties to the suit, they had no absolute right to withdraw their suit. Mr. Kariel submitted that since the rights acquired by the respondent No.7 were affected by Page 3 of 12 C/SCA/14955/2010 JUDGMENT withdrawal of the suit, the learned Judge has rightly not permitted the plaintiffs to withdraw the suit and committed no error in permitting the respondent No.7 to join as plaintiff in the suit. Mr. Kariel submitted that the respondent No.7 has stated in his application at Exh.62 that the plaintiffs have received substantial amounts from him and handed over the possession of the suit land to him by executing agreement dated 27.4.2009. Mr. Kariel submitted that the plaintiffs in collusion with the defendants wanted to defeat the rights of the respondent No.7 by withdrawing the suit on the basis of the settlement. Mr. Kariel submitted that the learned Judge having found that the respondent No.7 has agreement to sell in his favour and paid the substantial amounts to the plaintiffs, exercised his discretion to allow the application Exh.62 and consequently, the suit could not be permitted to be withdrawn. Mr. Kariel submitted that withdrawal of suit by the plaintiffs on compromise falls within Order XXIII Rule 3 of the Code of Civil Procedure, and it is the discretion of Court and not the right of the plaintiffs to withdraw the suit. Mr. Kariel submitted that the impugned orders passed are in exercise of discretionary jurisdiction of learned Judge, this Court may not interfere with the impugned orders in exercise of powers under Article 226/227 of the Constitution of India. Mr. Kariel submitted that the petitioners are not entitled to challenge two separate orders in one petition. Mr. Kariel thus urged to dismiss the petition.
9. Having heard learned advocates for the parties, it appears from the withdrawal pursis at Exh.66 (at Annexure-A) that the plaintiffs did not want to prosecute the suit further on account of out of Court settlement between the parties. The plaintiffs, therefore, wanted the suit to be disposed of as withdrawn.
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10. It is required to be noted that the parties to the suit had not submitted the settlement or compromise in writing before the Court. They did not even want the Court to order recording of any agreement or compromise in terms of Order XXIII Rule 3 of the Code and to pass a decree in accordance with any agreement or compromise. Therefore, the withdrawal pursis at Exh.66 would not fall under Order XXIII Rule 3 of the Code.
11. Simply because it is mentioned in the withdrawal pursis that since the settlement is arrived at, the suit is not to be prosecuted further, it could not be termed as an agreement or compromise in writing between the parties as contemplated under Order XXIII Rule 3 of the Code. It would also not warrant any satisfaction of learned Judge as required by Order XXIII Rule 3 of the Code. Therefore, the withdrawal pursis could be said to be just a volition of the plaintiffs to withdraw the suit without inviting any further order from the Court. Such request for withdrawal of the suit is not to be decided under Order XXIII Rule 3 of the Code. Learned Judge, therefore, could not have refused to accept the withdrawal pursis and dispose of the suit on the basis of the said pursis.
12. It appears that refusal to accept the withdrawal pursis was on the ground that the application of respondent No.7- third party Exh.62 was accepted and third party was allowed to be joined as plaintiff. However, it is not understood that how come the order made on the next date, i.e. on 12.8.2010 on the application Exh.62 could be the basis of the order dated 11.8.2010 for refusal of withdrawal pursis Exh.66 filed by the plaintiffs. Be that as it may, the question would be whether the respondent No.7 was at all entitled to be joined as a party, as plaintiff in the suit, and whether the learned Judge was justified in refusing to accept the withdrawal pursis on the ground that the third party's application to join as Page 5 of 12 C/SCA/14955/2010 JUDGMENT plaintiff was allowed.
13. Undisputably, the respondent No.7 wanted to join as plaintiff in the suit on the basis of the agreement to sell dated 27.4.2009. The reliefs claimed in the suit are not against the respondent No.7. In the suit, the plaintiffs have claimed rights as co-owners against other co-owners and the purchasers of their share in the property. Therefore, even if the suit was to be allowed and decreed or even if the suit was to be disposed of on the basis of out of Court settlement between the parties to the suit, in noway, the rights of the respondent No.7 were to be affected being not party to the suit. The right which the respondent No.7 has is to enforce his agreement. Therefore, it is always open to the respondent No.7 to enforce the agreement to sell by taking recourse to law. The Court is informed that the respondent No.7 has already filed suit for specific performance of the contract. In such suit, if it is permissible, he can ask for further reliefs. The rights of respondent No.7 in such suit are always to be decided independently on the basis of the evidence to be adduced in such suit.
14. The respondent No.7 could not be said to be either necessary or proper party to the proceedings of the suit filed by the plaintiffs. His presence is not required to decide the controversy in the suit. In his absence, the reliefs could be effectively granted. Therefore, the respondent No.7 was not entitled to be joined as party by any status. The plaintiffs in the suit are dominus litis. Against their wish, no body can be permitted to be joined as plaintiff except by transposition of defendant of the suit as contemplated in Order XXIII Rule 1A of the Code. The Court is, therefore, of the view that the learned Judge has exceeded in his jurisdiction in allowing the application Exh.62.
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15. In the case of Patel Dineshbhai Mohanbhai Vs. Naranbhai Ramdas (Decd.) Through Legal Heirs reported in 2005(1) GLR 116, this Court held and observed in para 49 to 52 as under:-
49. I have considered the argument of both the sides. The issue involved in this matter is very simple, whether the plaintiff has absolute right to withdraw the suit unconditionally and under what circumstances the Court can refuse such withdrawal. In my view, the trial Court has committed error of jurisdiction by not permitting the original plaintiffs to withdraw their suit unconditionally. It is required to be noted that it cannot be said that there is common cause of action so far as rights of original plaintiffs and third party are concerned. It cannot be said that there is common interest of the plaintiffs and the defendants, like common interest of parties in a partition suit. In my view, simply because the plaintiffs have made certain admission in the suit, that itself, cannot be made the basis for refusing the withdrawal of the suit, if the plaintiffs wanted to withdraw the suit unconditionally. The applicant-third party can rely upon such admissions as per the provisions of the Indian Evidence Act, in the suits filed by them, which are still pending.
50. It is also required to be noted that the third party-
applicants are not even defendants in the present suit and for the first time, they gave an application Exh.57, requesting the Court to permit them to be joined as co- plaintiffs in the suit. If the respondents No.2 to 5 have any independent right, naturally they can pursue the same in the suits, which they have already filed.
51. So far as argument of Mr.A.J.Patel regarding Section 15
(b) of the Specific Relief Act is concerned, which provides that the specific performance of the contract should be obtained by the representative in interest of the principal of any party thereto, the said aspect can be highlighted by the applicants in the suits, which they have already filed and which are pending. The question whether there is any assignment in favour of the applicants, is a question which is required to be decided in the suits filed by them and withdrawal of the present would not in any way prejudice the rights of third party-applicants and the suits filed by the third party-applicants are required to be decided on their own merits and the applicants can raise all the points available to them in those suits.
52. It is difficult to appreciate the reasoning given by the trial Court wherein the trial Court has stated that by giving said pursis, the plaintiffs have committed fraud with the Court. It is also required to be noted that if the plaintiffs have settled their dispute with the original defendants and Page 7 of 12 C/SCA/14955/2010 JUDGMENT if the plaintiffs 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. It is required to be noted that a suit for partition stands on different footing. In such partition suits, the cause of action of the plaintiff and some of the defendants may be common against some of the defendants, naturally, in such a case, Court can permit such defendants to be transposed as plaintiffs but that is not the situation in the present case. In my view, therefore, the trial Court has committed error of jurisdiction by refusing such unconditional withdrawal of the suit. When the plaintiff wants to withdraw the suit, the conduct of the plaintiff is not relevant for permitting him to withdraw the suit if he wanted to withdraw the suit unconditionally. It is required to be noted that the question regarding whether the applicants are required to be joined as party to the suit under Order 1 Rule 10 of C.P.C., arises subsequently for determination and the first question, which requires consideration is whether the plaintiff can be permitted to withdraw the suit unconditionally and if it is held that the plaintiff is entitled to withdraw the suit, naturally, there is no question of permitting so called third party to be impleaded in the suit.
16. In the case of Malaji Budhaji Thakor Vs. Lalaji Jagaji Thakor and Anr. reported in 2000(C) GLR 583, this Court has held and observed in para 9,10 and 11 as under:-
9. On the basis of the agreement to sell which has been executed by the defendant No.1 - respondent No.1 in favour of the plaintiff - petitioner of the suit land he filed the suit for specific performance thereof. This suit has been filed in the year 1989. The alleged agreement to sale on the basis of which what the defendant No.2 -
Respondent No.2 praying for his impleadment as a plaintiff in the suit is dated 29/8/91. The supplementary agreement alleged has been executed by the present petitioner i.e. the heirs and legal representatives of the original plaintiff on 14/6/96. Despite of all these agreements, the respondent No.2 at any point of time not prayed for his impleadment in the suit. I find sufficient merits in contention of the learned counsel for the plaintiff petitioner that the petitioner has absolute and indefeasible rights to withdraw his suit unconditionally. It is understandable that where the plaintiff is praying for withdrawal of his suit with liberty to file fresh suit, in appropriate case, the court may decline to grant the same. But in a case where the plaintiff is only desiring to withdraw his suit unconditionally, ordinarily nobody else can object to such a pursis or the application nor the court may decline to grant such prayer. The third party if has Page 8 of 12 C/SCA/14955/2010 JUDGMENT any rights in the subject matter of the suit, I fail to see how it can object or permitted to be objected or allowed to defeat an application for withdrawal of the suit filed by the plaintiff and more so that he may be impleaded as a party to the suit. If he has his own independent right, title or interest in the property in dispute, as alleged by him certainly, he has remedy for enforcement thereof. But in suit which the plaintiff decides to withdraw it unconditionally, the court may not grant the prayer made by the third party for its impleadment as party plaintiff therein. If the respondent No.2, as what it is alleged, has some right in the disputed property by assignment or subrogation, it is always open to him to take appropriate legal remedy for the enforcement thereof. But for that purpose, he can not object the unconditional withdrawal of the suit by the plaintiff. Moreover, the plaintiff cannot be compelled to continue the suit merely because the third party has claiming creation of his rights in disputed property by assignment or subrogation. The learned trial court has clearly committed a material irregularity in exercising its jurisdiction in declining to grant the pursis of the plaintiff - petitioner for the unconditional withdrawal of the suit. The court is not concerned with what would have been effect of the withdrawal of the suit on the alleged rights of the third party alleged to have been accrued in the suit property by assignment or subrogation. The third party have a remedy and it could have availed of the same but, in case within the period of limitation that remedy is not availed of and the plaintiff - petitioner decides to withdraw the suit unconditionally, he cannot be forced by the court to continue the suit by substitution of third party as plaintiff therein. The assignment or the subrogation of the alleged rights in suit property in favour of third party, the respondent No.2 herein as per its own case accrued to him in the year 1991 but he has filed this application under Order 1 Rule 10 of Code of Civil Procedure after long period and I fail to see any justification in his action to come up for such a prayer in court at this stage. He has not filed any suit for the enforcement of his alleged right in suit property. This matter needs to be considered from a different approach also.
10. The respondent No.2 prayed in the application under Order 1 Rule 10 of Code of Civil Procedure, 1908 for his impleadment in suit as plaintiff No.2 The plaintiff petitioner has not admitted the claim of the respondent No.2. Not only this the defendant respondent No.1 has also not admitted his claim. The respondent No.2 now wants to establish his rights qua the plaintiff petitioner in the suit property. So in this suit the dispute now to be decided in between third party respondent No.2 and plaintiff - petitioner. But in the suit both under the court order if it is granted his application, will be the plaintiffs.
Page 9 of 12C/SCA/14955/2010 JUDGMENT More so how a third party can be impleaded as a plaintiff in the suit where the plaintiff in suit is not agreeable for his impleadment. The learned trial court has lost site of the one important aspect that in a suit filed by the plaintiff after paying the court fee the third party wants to get a decision for his rights. Not only this in the suit no such cause of action is pleaded and also nor any prayer. How altogether a different, distinct and separate cause of action can be gone into and decided in this suit and that too between plaintiffs themselves. Whether by this simple impleadment of third party as plaintiff in suit in which the original plaintiff had come on different cause of action against a person other than third party this dispute between them can be gone into and decided? An obvious reply to this question will certainly be in negative. In the suit the third party respondent No.2 is neither a necessary or proper party.
11. In case this order is allowed to stand, it will occasion a failure of justice and cause injury to the plaintiff - petitioner as he has to continue the suit which he desirous of withdrawal of the same.
17. In the case of M/s. Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co. reported in AIR 1968 SC 111, the Hon'ble Supreme Court has held and observed in para 2 as under:-
2. The short question that, in those circumstances, falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed. The language of Order 23, Rule 1, sub-
Rule (1), C. P. C., gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-Rule (3) of that Rule There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, C. P. C or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. In the present case, the pleadings in paragraphs 8 and 11 of the written statement, mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counter-claim, because no provision is shown under which Page 10 of 12 C/SCA/14955/2010 JUDGMENT a counter-claim could have been filed in the trial Court in such a suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, in fact the appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. Even in Para. 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In these circumstances, at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested light may have accrued in the suit in favour of the defendant. On the facts of this case, it is clear that the right of the plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly justified.
18. In light of the above principles enunciated by the Hon'ble supreme Court and our Court and for the reasons stated above, the impugned order dated 11.8.2010 passed below application Exh.66 and the order dated 12.8.2010 passed below application Exh.62 in Regular Civil Suit No.161 of 2009 cannot stand scrutiny of law. Learned advocate Mr. Kariel however submitted that in the present petition, two separate orders passed by learned Judge cannot be challenged. However, such contention cannot be accepted for the simple reason that the order below Exh.62 is the basis for the order Page 11 of 12 C/SCA/14955/2010 JUDGMENT below Exh.66. They are therefore rightly challenged by one petition.
19. In the result, the petition is allowed. The impugned order dated 11.8.2010 passed below application Exh.66 and the order dated 12.8.2010 passed below application Exh.62 in Regular Civil Suit No.161 of 2009 are quashed and set aside. The withdrawal pursis Exh.66 is allowed. Learned Judge shall pass formal order of disposing the suit on the basis of withdrawal pursis Exh.66. Rule is made absolute to the aforesaid extent.
Sd/-
(C.L. SONI, J.) omkar Page 12 of 12