Punjab-Haryana High Court
Girdhari Lal vs Sewa Ram And Ors. on 10 April, 2002
Equivalent citations: 2002 A I H C 3310, (2002) 3 RECCIVR 19, (2002) 4 ICC 324, (2002) 2 CURLJ(CCR) 583, (2002) 3 CIVILCOURTC 11, (2002) ILR 2 P&H 100, (2002) 2 PUN LR 358
JUDGMENT M.M. Kumar, J.
1. The question raised in this revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is as to whether the appellate Court could permit withdrawal of a suit which has been dismissed by the trial Court and the judgment/decree has been subject matter of appeal filed by plaintiff-respondent No. 1 to withdraw the suit as well as appeal by passing the order in a routine and casual manner. The order passed by the Additional District Judge, reads as under:
"The appellant with his learned counsel has made a statement to the effect that a suit is already pending with respect to the suit property which is titled Sewa Ram Versus Girdhari. According to him, the points involved in that suit and this case are common. For this reason, he withdrew the appeal and prayed for being allowed to withdraw the suit as, well as appeal.
Learned counsel for respondents have no objection if the suit is permitted to be withdrawn. In these circumstances, the suit is dismissed as withdrawn and the appeal is dismissed as having become infructuous. File be consigned to record room."
2. Brief facts of the case which led to the filing of the present revision petition are that plaintiff-respondent No.l filed a civil suit against the defendant-respondents No.2, 3 and 1, namely, Municipal Committee who sanctioned the site plan and two sons of plaintiff-respondent No.l himself. It was a suit for declaration with a consequential relief of permanent injunction with the averments that plaintiff-respondent No.l is owner of residential plot No.EP-201 situated at Sohna, tehsil and district Gurgaon. A site plan was also attached with the plaint. Plaintiff-respondent No.l further averred that he had purchased the said plot in dispute from his brother Chetan Dass vide registered sale deed dated 24.5.1974. It was asserted that he never submitted any site plan for according sanction with the object of raising construction over the said plot in the office of Municipal Committee, Sohna i.e. defendant-respondent No.2. The said site plan was alleged to have been submitted by defendant-respondents No.3 and 4 and the same was sanctioned in their name on 8.6.1982. A declaration was sought that the order dated 8.6.1982 passed by defendant-respondent No.2 sanctioning the site plan is illegal, null and void on the ground that it was plaintiff-respondent No. 1 who has been owner in possession of the plot in dispute and defendant-respondents No.2 and 3 had got no concern with the same. It was further asserted that defendant-respondents No.2 and 3 had no right or authority to submit and get site plan sanctioned for construction regarding the property of plaintiff-respondent No. 1 and the order passed by defendant-respondent No.2 sanctioning the site plan without verifying the ownership of the plot in favour of defendant-respondents No.3 and 4 is illegal and liable to be set aside. Defendant-respondents No.3 and 4 filed their written statement admitting the claim of plaintiff-respondent No.l. However, defendant-respondent No.2 i.e. Municipal Committee, Sohna contested the suit and filed the written statement.
3. When the defendant-petitioner came to know about the filing of the suit, he filed an application under Order I Rule 10 of the Code and became party to that suit. He also filed his separate written statement pleading that plaintiff-respondent No. 1 was estopped from filing the suit by his act and conduct. It was pleaded that plaintiff-respondent No.l has concealed the material facts and the suit has been filed with an oblique motive to destroy the evidence. The defendant-petitioner also disputed the boundaries of the plot as given in the site plan produced by plaintiff-respondent No.l. On the basis of the pleadings of the parties, the trial Court framed the following six issues:
1. Whether the plaintiff is owner in possession of the plot No.EP-201 as alleged? OPP
2. Whether the site plan sanctioned by defendant No.l in favour of defendant No.2 and 3 on 8.6.82 regarding the portion ABCDG is illegal, if so to what effect?
3. Whether the plaintiff is estopped from filing the present suit? OPD
4. Whether the suit is false and frivolous and defendant No.4 is entitled to special costs? OPD
5. Whether the suit of the plaintiff is collusive between plaintiff and defendants No.2 and 3.
6. Relief.
4. On issue No.2 the trial court gave categorical findings that there was no illegality in the order dated 8.6.1982 according sanction to the site plan by defendant-respondent No.2 and the suit was a collusive suit between plaintiff-respondent No.l and defendant-respondents No.3 and 4. It has further been found that plaintiff-respondent No.l did not come to the Court with the clean hands and has mala fide intention. The findings recorded on issue No. 2 reads as under:
"After hearing the learned counsel for the parties at length and appreciating the entire oral and documentary evidence adduced in the case, I am of the considered opinion that there is no illegality about the site plan sanctioned by defendant No.l on 8.6.82. The defendants No.2 and 3 are none other than the real sons of the plaintiff. They have also filed their admission written statement admitting the claim of the plaintiff in toto. Therefore, it is apparent that there is a collusion between the plaintiff and defendants No.2 and 3. The plaintiff, in the present case/suit, is claiming a declaration of his title qua defendants No.2 and 3, his sons, and at the same time, the plaintiff is also seeking to declare the site plan sanctioned by defendant No.l on 8.6.82 as illegal. The certified copy of the sanctioned site plan dated 8.6.82 is Ex.Dl. The plaintiff had moved defendant No.l on behalf of defendants No.2 and 3 for sanctioning the site plan under his signatures and he had also given reply to the notices which were issued by defendant No.l and thereafter, composition fee was also paid by the present plaintiff on behalf of defendant No.2 and 3. In my opinion, the plaintiff has not come to the court with clean hands and his guilty intention is clear on the face of the record when he pleaded in the plaint that he came to know of the sanctioning of site plan dated 8.6.82 after receiving the summons of the Civil suit pending between the parties before another Court. In fact, it was the plaintiff who moved defendant No.l to sanction the site plan under his signatures and, therefore, he had the knowledge of passing of the same ever since the date of its sanctioning and therefore, the pleadings of the plaint are on the face of it, false given to the knowledge of the plaintiff. Even if the site plan dated 8.6.82 was sanctioned in favour of defendants No.2 and 3, then also, the same would not make any difference because it was the plaintiff only who got the same sanctioned and defendants No 2 and 3 never claimed their ownership over the same. Therefore, in my opinion, the present suit has been filed just to create evidence for the other suit which is pending decision between the plaintiff and defendant No.4. Thus, it is proved that it was the plaintiff only who got the site plan dated 8.6.82 sanctioned and since defendants No. 2 and 3 are not claiming any title on the basis of the same, therefore, the plaintiff would be estopped after more than 10 years, to challenge the sanctioning of the same on mala fide and frivolous grounds. It is clearly proved on the file, from the documentary evidence produced on the file by Ved Parkash, Clerk, Municipal Committee, Sohna who appeared as DW1 that it was the plaintiff who got the site plan sanctioned and when there arose the dispute between the plaintiff and defendant No.4, he tried to wriggle out of the site plan dated 8.6.82 and to achieve that purpose. He filed the present false and frivolous suit.
5. Other issues were also decided against plaintiff-respondent No.1 It is appropriate to mention that apart from the suit filed by plaintiff-respondent No.l from which the present revision has arisen another suit has been filed by plaintiff-respondent No.l against the defendant-petitioner regarding the portion marked in the site plan as DEFG. The suit titled Sewa Ram v. Girdhari Lal filed in the year 1991 was still pending. The defendant-petitioner in that suit had filed a copy of the site plan which was allegedly-got sanctioned on 8.6.1982 by defendant-respondents No.3 and 4 from defendant-respondent No.2 in respect of property marked as ABCD. In the afore-mentioned site plan on the southern and northern side of the portion DEFG, the boundaries belonging to the defendant-petitioner were shown, however, according to plaintiff-respondent No.l there was no such plot towards northern and southern side of the property of plaintiff-respondent No.l, According to plaintiff-respondent No.l, the said order dated 8.6.1982 according sanction to the site plan was illegal, null and void. The object of the suit appears to be to wriggle out of the admission of the plaintiff-respondent's own sons, namely, defendant-respondents No.3 and 4 that on the northern and southern side of the portion DEFG, property of the defendant-petitioner was shown.
6. After the suit was dismissed with categorical findings in its judgment and decree dated 19.1.2000 passed against plaintiff-respondent No.l a civil appeal challenging that judgment and decree was filed. However, in a routine and casual manner, the Additional District Judge has allowed the suit to be withdrawn with a further observation that the appeal had been rendered infructuous vide impugned order dated 2,6.2001.
7. I have heard Shri A.L. Jain, learned counsel for the defendant-petitioner and Shri Lokesh Sinhal, learned counsel for plaintiff-respondent No.1 at considerable length and have perused the record with their assistance.
8. Shri A.L. Jain has submitted that under Order XXIII Rule 1 of the Code, no doubt that the Court is vested with the power to permit withdrawal of the suit when no decision has been rendered. However, when the suit has been dismissed and the appeal is pending it is not possible to allow the withdrawal of the suit at the appellate stage because once the decree is passed by the trial Court then certain rights come into existence and are vested in the party in whose favour the suit was decided. Therefore, plaintiff-respondent No. 1 is not entitled to withdraw the suit as a matter of course at any time after the decree dismissing the suit has been passed by the trial Court. In support of his submission, the learned counsel has placed reliance on three judgments of this Court, namely, Jubedan Begum v. Sekhawat Ali Khan A.I.R. 1984, Punjab and Haryana 221, 57). Guru Maharaj Anandpur Ashram Trust Guna and Ors., v. Chander Parkash and Ors. (1986-1)89 P.L.R. 319 and Baba Lal v. Mahipal Singh LRS, (2000-1)124 P.L.R. 590. The learned counsel has pointed out that in the present case a categorical finding has been given by the trial Court in his favour and it has been held that the order dated 8.6.1982 dots not suffer from any illegality. It has further been held by the trial Court that the suit filed by plaintiff-respondent No.l against defendant-respondents No.3 and 4 was a collusive suit and that it was filed with a mala fide intention. Further findings which have been recorded by the trial Court are that the application for sanctioning of the site plan was filed by plaintiff-respondent No.l and even the composition fee was paid by him. The learned counsel has further pointed out that there admissions were also made by the sons of plaintiff-respondent No. 1 to the effect that on the northern and southern side of the portion DEFG, property of the defendant-petitioner was shown and the purpose of the suit was to wriggle out of that admission. Learned Counsel has drawn my attention to the affidavit filed by the defendant-petitioner wherein it has been categorically stated that no consent was given either by him or his counsel for withdrawal of the suit.
9. On the other hand, Shri Lokesh Sinhal, learned counsel for plaintiff-respondent No.l has submitted that the impugned order passed by the Additional District Judge has expressly recorded that the defendant-petitioner did not raise any objection if permission to withdraw was to be granted. He has further argued that the impugned order is an order based on the consent of the parties and is not open to challenge at the instance of the defendant-petitioner. For this purpose, he has placed reliance on a judgment of this Court in the case of Tek Chand v. Balbir Singh and Ors. (1996-1)112 P.L.R. 456 and argued that a presumption is attached to the authenticity of the courts record. He has further submitted that already another suit is pending which has been filed by plaintiff-respondent No.l against the defendant-petitioner.
10. Having heard learned counsel for the parties at a considerable length I am of the considered opinion that this revision petition merits acceptance. Before dealing with the respective arguments raised by the learned counsel for the parties, it is appropriate to refer to the provisions of Order XXIII Rule 1 of the Code which reads as under:
"I. 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 apart 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 of 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, person.
(3) Where the Court is satisfied:-
(a) that a suit must fail by reason of some formal defect, or 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 a suit or part of a 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 cost 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.
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 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."
11. A perusal of Order XXIII Rule 1 of the Code shows that a suit can be withdrawn at any time with the permission of the Court. The object for seeking permission of the Court appears to be that the permission may be declined in cases where rights accruing from the decree has come to be vested in the party in whose favour the suit is decided In R. Rathinavel Chettiar and v. V. Sivaraman and Ors., 1999(4) Section C.C. 89 the Hon'ble Supreme Court after reviewing the whole case law has come to the conclusion that allowing the withdrawal of the suit at the appellate stage cannot be permitted because it would have the effect of destroying and nullifying the decree which has decided rights of the parties. Accordingly those rights come to be vested in the parties under the decree. The observation of their Lordships reads as under:
"Once the matter in controversy has received judicial determination the suit results in a decree either in favour of the plaintiff or in favour of the defendant.
What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystalised and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. Now, the decree can be recalled, reversed or set aside either by the court which had passed it as in review, or by the appellate or revisional court. Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits."
12. It is appropriate to mention that the judgment rendered by this Court in the case of Sh. Guru Masharaj Anandpur Ashram Trust Guna (supra) relied upon by the defendant-petitioner was also approved by the Supreme Court.
13. Similar view has been taken by the Supreme Court in the case of Executing Officer, Arthanareswarar Temple v. R.Sathyamoorthy, 1999(3) Section C.C. 115 where their Lordships observed as under:
"Various High Courts have rightly held, while dealing with the applications under Order 23 Rule 1 CPC, that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial court dismissing the suit and if the appellant-plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial court in favour of the defendant would get nullified, such permission for withdrawal of the suit should not be granted."
14. The principles laid down by the Supreme Court in various judgments and three judgments relied upon by the learned counsel for the defendant-petitioner, when applied to the facts of the present case then it is not possible to sustain the impugned order passed by the Additional District Judge allowing the withdrawal of the appeal as certain rights which have come to vest in defendant-petitioner could not be taken away. Numerous findings have been recorded by the trial Court in its judgment and decree dated 19.12.2000 while dismissing the suit of plaintiff-respondent No. 1. Therefore, I have no hesitation in accepting the arguments of the revision petitioner.
15. The arguments of the learned counsel for plaintiff-respondent No. 1 that no revision is competent as the order passed by the Additional District Judge is consented order does not merit serious consideration because there is no express consent given by the defendant-petitioner. It has been specifically observed by the Additional District Judge that no objection has been raised and such an expression of passive silence would not amount to according consent. The judgment in the case of Tek Chand (supra) relied upon by the learned counsel does not have any bearing on the question which was raised for consideration in the present case.
16. For the reasons recorded above, this petition is allowed. Order dated 2.6.2001 is set aside. The appeal of the plaintiff-respondent No. 1 is restored on the file of the Additional District Judge at its original number and the same shall be decided by the Additional District Judge expeditiously preferably within a period of 6 months. Parties through their counsel arc directed to appear before the Additional Distt. Judge on 1.5.2002.