Patna High Court
Basudeb Narayan Singh And Ors. vs Shesh Narayan Singh And Ors. on 19 May, 1978
Equivalent citations: AIR1979PAT73, AIR 1979 PATNA 73, 1979 BLJR 300 (1979) BLJ 152, (1979) BLJ 152
ORDER Madan Mohan Prasad, J.
1. This application is directed against an order refusing leave to the plaintiffs to withdraw their suit and transposing the defendants to the category of plaintiffs.
2. It appears that a suit for partition of certain properties was filed by the plaintiffs-petitioners originally against defendants 1 to 3. The plaintiffs alleged that plaintiff No, 1 and defendant No. 1 were sons of one Girwar Narain Singh, that on his death defendant No. 1 became the karta of the family and looked after the management of the properties; that the relationship between the two brothers had become strained end hence the demand for and the suit for partition. According to the defendants, the aforesaid Girwar Narain Singh had a brother Mahendra Narain Singh who had separated from his brother and he had gifted away his property to defendant No. 1. The defendants further alleged that they had also separated from the plaintiffs.
3. Thereafter one Janki Devi claiming to be the widow of Mahendra Narain Singh filed a petition under Order I, Rule 10 of the Civil P. C. (hereinafter called 'the Code') for being impleaded as a defendant and it was allowed. She made; out a case that she had inherited and got the properties of her husband Mahendra and not the first defendant. There was another parson Permila Devi claiming to be the daughter of said Mahendra Narain Singh from his first wife who filed a similar petition for being impleaded as an intervenor defendant. Her prayer was also allowed, She made out a third case to the effect that Mahendra and Girwar were joint with one Nagendra Narain, their stepbrother. According to her, all of them were in joint possession of the property. The claim of this lady was denied by the other defendants. It appears next that she filed a petition on 17-7-75 for appointment of a receiver in respect of the suit properties.
It is said that this application was rejected by the trial court but an order for payment of ad interim maintenance in favour of the said Parmila Devi was passed. As against that, there were civil revision applications in this court. In this court she said that she would not claim maintenance. In that view of the matter this court said that the order regarding maintenance would not be given effect to. For that reason the applications in this court were withdrawn. Next it appears that in the court below she pressed the point and ultimately by an order dated the 3rd of Feb. 1976 a receiver was appointed. There was no appeal or revision against this order and it became final,
4. It appears that much before this, Parmila Devi had filed a petition for being transposed to the category of the plaintiffs in case the plaintiffs wanted to withdraw the suit. It appears from the order sheet that the petition was not moved and was kept on record. On the 15th of Jan. 1977, the plaintiffs filed a petition under Order 23, Rule 1 of the Code for permission to withdraw the suit. A rejoinder was filed by Parmila Devi objecting to the aforesaid course. The other defendants did not object to the withdrawal. The matter was heard on the 3rd of Feb. 1977. On that date Parmila Devi again filed a petition for being transposed to the category of plaintiffs. The learned Judge allowed her prayer by ordering her transposition to the category of plaintiffs and of the plaintiffs to the category of defendants and also refused the prayer of the plaintiffs to withdraw the suit. Hence this application.
5. The court below held that in a suit for partition every defendant is in the position of a plaintiff and the suit could not, therefore, be allowed to be withdrawn. In view of the aforesaid tha prayer of defendant Parmila Devi was considered fit to be allowed,
6. Counsel for the petitioners has urged that a plaintiff has an absolute right granted by Order 23, Rule 1 of the Code to withdraw the suit and the court below had, therefore, no jurisdiction to refuse the prayer. In this connection he placed reliance on a decision of the Supreme Court in the case of M/s. Hulas Rai Baij Nath v. Firm K. B. Bass & Co. (AIR 1968 SC 111).
7. On the other hand, it has been urged by counsel for the opposite party that where a valuable right has, during the course of the suit, accrued in favour of any of the defendants, the suit should not be allowed to be withdrawn. Counsel placed reliance on another decision of the Supreme Court in the case of R. Ramamurthi Aiyar v, Rajeshwararao (AIR 1973 SC 643).
8. The point for decision thus arises as to whether in the circumstances of the present case the plaintiffs could be allowed to withdraw the suit.
9. Before entering into the question I must first decide a preliminary objection which was raised on behalf of the opposite party in their counter-affidavit, namely, that there were two orders passed in the case, one rejecting leave to the plaintiffs to withdraw the suit and the other on the application of the intervenor defendants to be transposed to the category of plaintiffs and thus two civil revision applications should have been filed in the present case. Reliance was placed in this connection on a decision of this court in Mahabir Prasad Singh v. Narmedeshwar Prasad Singh (AIR 1967 Pat 326) and Dr. Mrs. Sarojini Pradhan v. Khirode Chandra Pradhan (AIR 1973 Orissa 214). Counsel for the petitioners, however, said that he is prepared to pay additional court-fee on the basis of two applications. It has been pointed out that by the present application the prayer has already been made to set aside the order as a whole and thus in both respects. I would accordingly direct the petitioners to pay additional court fee for one more application. The point is thus disposed of.
10. Reverting to the point for decision in this case it appears that in the case of M/s. Hulas Rai Baij Nath (AIR 1968 SC 111) (supra) it was a suit for rendition of accounts filed by the principal against his agent. Issues had been framed there and some evidence had been recorded but no preliminary decree for rendition of accounts had been passed. There was no prayer for permission to file a fresh suit under Sub-rule (2) of Rule 1 of Order 23 of the Code, nor any counter claim was made for set off. In such circumstances their Lordships held that the plaintiff had a right to withdraw the suit. On the basis of this decision counsel for the petitioners in the present case urged that the principle of law to be deduced from this decision is that where a preliminary decree has not been passed, and in that respect a partition suit is similar to a suit for accounts -- the suit can be withdrawn by the plaintiffs under Sub-rule (1) of Rule 1 of Order 23 of the Code. Another decision of the Supreme Court to which learned counsel drew attention is in the case of Bijayananda Patnaik v. Satrughna Sahu (AIR 1963 SC 1566). There the question was of withdrawal of an election appeal-The learned Judges held that it could be allowed to be done on the strength of Order 23, Rule 1 (1) of the Code which grants a plaintiff an absolute right to withdraw a suit unconditionally. There are however, a few other decisions which may be relevant to the present discussion. In the case of Sm. Saraswati Bala Samanta v. Surabala Dassi (AIR 1957 Cal 57) there was a partition suit in which at the close of the argument the plaintiff having found that he could not succeed, applied for withdrawal of the suit The suit was allowed to be withdrawn and said to amount to dismissal for non-prosecution. In this respect the learned Judges said that where the plaintiff desires to withdraw the suit and does not want permission to institute a fresh suit, he is at liberty to do so under Rule 1 of Order 23 of the Code, and by this withdrawal he is precluded from instituting a fresh suit, but the withdrawal does not amount to a dismissal for non-prosecution.
In the case of Hasan Badsha v. Sultan Raziah Begum (AIR 1949 Mad 772) Viswanatha Sastri, J. held that the right of withdrawal is subject to the condition that the defendant has not obtained a valuable right by reason of anything done such as compromise on prelimisary decree during suit till application for withdrawal. This was also a suit for partition. In this case the property was held to be incapable of division and thus the defendant had applied for purchasing the same under Section 3 of the Partition Act. It was held that no right had accrued on that account and thus the plaintiff could withdraw the suit. In the case of V.E.A.R.M. Annamalai Chettiar v. Koothappudayar (AIR 1934 Mad 485) a learned single Judge of that Court held that in partition suits the power of the plaintiff to withdraw has been limited to this extent only that it can be exercised only till a right in the defendant in the continuance of the suit or its determination in a particular way has been legally created, as for example, by a preliminary decree or a compromise or agreement or award.
Reliance was placed by the learned Judge on various decisions in Surampalli Ramamurthi v. Surampali Reddy (AIR 1920 Mad 546 (1)), Satyabhamabai v. Ganesh Balkrishna ((1905) ILR 29 Bom 13) and Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel (AIR 1925 Bom 425). In Satyabhamabai's case (supra) in a suit for partition a decree had been passed on an agreement and an appeal by the plaintiff was pending when he wanted to withdraw the suit. It was held that it was not open to the plaintiff who had made the concession to annul It by withdrawing from the suit.
11. There are a few other cases to which reference may be made. In Debi Chand v. Parbhu Lal (AIR 1926 All 582) a preliminary decree in a suit for accounts filed by one partner against the others had been passed. Thereafter there was a prayer for withdrawal of the suit to which the defendant objected. The learned Judges held that the proper course was to transpose the defendant to the category of plaintiff. In Loke Nath Saha v. Radha Govinda Saha (AIR 1926 Cal 184) there was a suit for partition where it was held that every defendant is in position of a plaintiff and, therefore, can claim partition. In the case of R. Ramamurthi Aiyar (dead) by L. Rs V. Raja v. Rajeswararao (AIR 1973 SC 643) a property was considered to be indivisible and thus a prayer was made for sale of half share of the property and payment to the plaintiff of proceeds thereof. The defendant, on the other hand, said that the property was divisible but in case of sale he was prepared to buy the other half belonging to the plaintiff. This right was invoked under Section 3 of the Partition Act.
The plaintiff then wanted to withdraw the suit with liberty to institute a fresh suit. The trial Judge held that since no decree had been passed it was open to the plaintiff to withdraw the same. The suit was dismissed as withdrawn. The learned Judges of the Supreme Court held that the plaintiff could not be allowed to withdraw the suit after the defendant had gained or acquired the privilege of buying the share of the plaintiff in accordance with the provisions of Section 3. Reliance was placed on the decision in the case of Tukaram Mahadu Tandel ((1905) ILR 29 Bom 13) (supra). The learned Judges referred to the following observation of Crump J.:--
"But there are other and wider considerations which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants' claim. It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another (Order XXIII, Rule 1 (4))."
Further, the learned Judges observed as follows :--
"It seems to us that the true position under Sections 2 and 3 of the Partition Act so far as Order 23, Rule 1, C.P.C. is concerned must be determined in the light of the rule enunciated by Crump J., in the above case as that rule has seldom been doubted and there is a large body of judicial opinion to support it."
12. The principles which can be deduced out of the cases aforesaid are clearly the following.
(1) The plaintiff under Sub-rule (1) of Rule 1 of Order 23 of the Code has a right to withdraw a suit at any stage; (2) that such a right of the plaintiff is limited to the extent that it does not result in defeating a right which has already vested in the defendant, such a right may have become vested in the defendant either on account of a compromise or a concession or a decree or an award or similar circumstances; (3) that in a partition suit every defendant is virtually in the position of a plaintiff, his claim being founded on a claim similar to that of the plaintiff; and (4) that Order 23, Rule 1, Sub-rule (1) of the Code applies even to a partition suit, subject to the aforesaid limitation.
13. In this background of the law the point arises as to whether the circumstances of the present case have created any vested right in the defendant which should justify the refusal of the prayer of the plaintiff to withdraw the suit. From the facts stated earlier it would appear that defendant Parmila Devi claimed a share on the allegation that she was the daughter. On this allegation she had a right to file a suit for partition independently. She was allowed to join as an intervenor defendant. Thereafter she alleged waste of the properties by the other parties and accordingly she prayed for the appointment of a receiver. In this connection the plaintiffs gave an undertaking that that they would not transfer any of the properties during the pendency of the suit. The trial court first refused her prayer for appointment of receiver and granted her a maintenance. She, however, waived this right to maintenance and prayed for appointment of receiver so as to save the property from waste and illegal transfers. The court appointed a receiver and thus the property could not be transferred legally by any of the parties to the suit, The question arises whether these circumstances vested in this defendant a right which would justify the refusal of the prayer for the plaintiffs to withdraw. It is true that under Sub-rule (1) aforesaid, a plaintiff has a right to withdraw unconditionally, but after all it is a rule of procedure and it is well settled that procedure is to aid justice and not to defeat it. It is for this reason that Crump J, said that there are wider considerations involved in the matter and this dictum of Crump J. was adopted by the Supreme Court in the case of R. Ramamurthi Aiyar (AIR 1973 SC 643) (supra). Therefore, considerations of justice and equity have to be kept in view before granting the prayer of a plaintiff to withdraw from a suit. Now what would be the result if the plaintiff is allowed to withdraw from the present suit. The result will be that the receiver will cease to exist, the property may be wasted or transferred by the plaintiffs or other parties; further, the defendant would be put to loss inasmuch as she waived the right of maintenance on account of the grant of the right of receivership, It is clear that by the order of appointment of receivership the property had been taken out of the possession of the parties. By the order of the court thus the right of the defendant not to allow the plaintiffs to waste the property had vested in her and this right would undoubtedly be defeated. I may emphasise at the risk of repetition that the undertaking given by the plaintiffs not to transfer the property during the pendency of the suit amounts to a concession in favour of the intervenor defendant, the advantage of which would be lost if the suit is allowed to be withdrawn.
14. In the light of the circumstances aforesaid, in my view the court below has correctly decided to refuse the prayer of the plaintiffs to withdraw the suit at this stage.
15. That brings me to the next point as to whether it was justified in transposing the intervenor defendant to the category of plaintiff. In this respect the law is more than clear. There is no bar in law to a defendant asking to be transposed to the category of the plaintiff provided the claim is founded on the same cause of action. In a suit for partition, whether it be plaintiff or defendant, the cause of action is the same. It is said that there was no objection to the impleading of the intervenor defendant Parmila Devi. In this connection, however, it has been pointed out that she claims to be a daughter of Mahendra, but that claim is denied by the other parties. That makes little difference. It can happen in any similar case of a pro forma defendant, who may claim to be entitled to a share, It is well settled that if it is necessary for a proper adjudication of the real controversy in suit, the court may, acting under Order 1, Rule 10 (2) of the Code, add or strike out parties or transpose them from one category to the other (see R. S. Maddanappa (deceased) v. Chandramma, AIR 1965 SC 1812 and Bhupendra Narayan Sinha v. Rajeswar Prosad, Bhakat, AIR 1931 PC 162). In the last case the Privy Council said that the course of adding pro forma defendants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. In this view of the matter, the court below had the jurisdiction to decide as to whether or not Parmila Devi should be allowed to be transposed to the category of the plaintiffs and the plaintiffs to the category of defendants. The court below has decided it in favour of the intervenor defendant. It cannot, therefore be said that the order in this respect suffers from want of jurisdiction or illegal exercise thereof,
16. In the result, I find no merit in this application. It is accordingly dismissed. In the circumstances of the case, however, there would be no order as to costs.