Delhi High Court
Jaswinder Singh vs Mrigendra Pritam Vikramsingh Steiner & ... on 22 August, 2013
Equivalent citations: AIR 2014 (NOC) 109 (DEL.), 2013 (4) ADR 781
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13.08.2013
Decided on : 22.08.2013
+ FAO (OS) 684/2010, CM APPL.21681/2010
JASWINDER SINGH ..... Appellant
versus
MRIGENDRA PRITAM VIKRAMSINGH STEINER
& ORS. .... Respondents
+ FAO (OS) 30/2013
JASWINDER SINGH ..... Appellant
versus
MRIGENDRA PRITAM VIKRAMSINGH STEINER & ORS
..... Respondents
+ FAO (OS) 31/2013
GEETANJALEI SINGH & ANR ..... Appellants
versus
MRIGENDRA PRITAM VIKRAMSINGH STEINER
& ORS ..... Respondents
Appearance: Mr. Arun Khosla with Ms.
Shreeanka Kakkar, Advocates for
appellants.
Mr. A.K. Vali with Mr. Ramesh N.
Keswani and Mr. Tuhin, Advocates for
respondents.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
MR. JUSTICE S.RAVINDRA BHAT
%
FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 1
1. The present common judgment and order will dispose off three appeals preferred by the unsuccessful first defendant against an order of the learned Single Judge, in C.S. (O.S.) 980/2009. The impugned order of 12.11.2010 dismissed the appellant's application for rejection of the suit instituted by the first four respondents. The impugned order had also allowed an application preferred by the said respondents under Order 40, Code of Civil Procedure (CPC) and appointed a receiver in respect of the two suit properties in question.
2. The respondents in these appeals (plaintiffs in the suit) are daughters of the late Shri Rajendra Vikram Singh. In the suit, they claimed partition of two properties: B-10, West End, New Delhi and a commercial property, No. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi. The latter was purchased from the sixth defendant. The West End property, claim the plaintiffs, was joint family property owned by their father and his brother, the late Shri Jaswant Singh. The appellant herein (the first defendant in the suit), Shri Jaswinder Singh is the son of the late Shri Jaswant Singh. The second defendant, Ms. Surinder Kaur is the widow of the late Shri Jaswant Singh. The third, fourth and fifth defendants are daughters of the late Shri Jaswant Singh. The sixth defendant, Ansal Properties sold (or agreed to sell) the commercial property, at 510, Suryakiran Building. The seventh defendant is the tenant in occupation of the rear half portion of the West End property; the eighth defendant on the other hand is tenant in occupation of the commercial property at Suryakiran Building.
FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 2
3. The plaintiffs claimed that their father was a joint owner of the West End property and two separate buildings were constructed on the said plot. The front portion of the building belonged to the late Shri Jaswant Singh, the predecessor-in-interest of the first to fifth defendants; the rear portion of the building facing the South End side belonged to the father of the plaintiffs (which is presently under the occupation of a tenant paying rent to the first defendant). Similarly, the property - Surya Kiran Building is under tenancy. The plaintiffs' father had settled in the United States of America and died on 02.01.2001 in India. Here, the plaintiffs allege that their father made an unregistered Will dated 05.12.2000 and bequeathed all immovable properties to them, and that in any event, even if the Will is not taken into consideration, the property passed to them by operation of law and succession. The plaintiffs have also disclosed that they had earlier filed a suit (C.S. (O.S.) 1207/2001) claiming half ownership of the West End property, but that suit was rejected for non-payment of the requisite court fees.
4. The appellant contested the suit arguing that the plaintiffs' father had bequeathed the immovable properties by Will dated 05.12.2000 to him as his (i.e. the testator's) daughters were settled permanently in the U.S.A. The appellant was the testator's nephew, and thus claimed that the bequest was made in his favour out of natural love and affection. He also alleged that the West End property was mutated in his favour on the basis of the Will, and accordingly, it was let out by him to the tenant for a monthly rental of `6/7 lakhs. The appellant likewise alleged that the late Rajendra Vikram Singh FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 3 by the same Will bequeathed the Surya Kiran commercial property exclusively to him, and consequently, he applied to the sixth defendant for mutation of the property, and thus, got the Agreement to Sell endorsed in favour of his wife and daughter.
5. The material portions of the appellant's pleas, which were also urged in his unsuccessful application for rejection of the plaint, are extracted below:
"XXXXXX XXXXXX XXXXXX
10. That the instant suit is hit by the provisions of Order 23 Rule 1 of the CPC in as much as the dismissal of the earlier civil suit, namely CS (OS) 1207/ 01, on the same cause of action as the instant suit was dismissed vide Order dated 12.02.2007 not only on the ground of non-payment of the requisite Court Fee but also for the non-prosecution and thereby abandonment of the said suit.
It is submitted that the only remedy under the circumstances available to the Plaintiffs was a restoration of the earlier suit to its original number within the prescribed period of limitation and not the institution of the instant suit.
11. That even if for the sake of argument if it were assumed, though not admitted, that the said dismissal of the said suit was not for non-prosecution then the dismissal of the aforementioned Probate Petition before the learned District Judge Kurukshetra would preclude the filing of the instant civil suit because the foundation of the instant suit is the alleged Will dated 22.12.2000 it stands rejected and indeed vide the aforementioned Order dated 24.11.2005 made by this Hon'ble Court records the admission of the Will dated 05.12.2000 propounded by the answering Defendant.
FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 4
12. That the instant suit would also be woefully barred by limitation in as much as the cause of action for the instant suit is the Defendant No.1's propounding of the Will dated 05.12.2000 and claiming ownership of the suit properties thereunder in the year 2001 from when limitation would be reckoned resulting in the failure of the suit.
XXXXXX XXXXXX XXXXXX"
6. The appellant sought rejection of the plaint on several grounds
- that it was not maintainable because the dismissal of the previous suit amounted to an abandonment of the claim which precluded another suit based on the same or similar claims; that the suit was barred by limitation because the cause of action alleged in the plaint occurred in 2001; that the provisions of the CPC precluded a second claim when the first had been rejected; that the suit was bad for mis-joinder, etc. The learned Single Judge dismissed the application for rejection of the suit (I.A. 10546/2009) by the impugned order. Further, while the application for appointment of receiver (I.A. 7094/2009) preferred by the plaintiffs was allowed, another application for attachment before judgment (I.A. 7093/2009) was rejected.
7. Learned counsel for the appellant, Shri Arun Khosla, argues that the plaint ought to have been rejected on the basis of settled principles of law. It is submitted that the suit was barred by limitation through admissions in the plaint. It was further submitted that the earliest point in time when the cause of action, or the right to sue, FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 5 arose in the present case was triggered by the appellant's assertion of his being the exclusive legatee and heir to the plaintiff's deceased father's estate in 2001. For this, learned counsel relied on Mst. Bolo v Mt. Koklan and Ors. 1930 (32) Bom LR 1596, for the following observation at paragraph 17 of the judgment:
"There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted................."
Likewise, the observation in Kunwarjeet Singh Khandpur v. Kirandeep Kaur & Ors. AIR 2008 SC 2058, rejecting the plea of inapplicability of the residuary provision (Article 137 of the Schedule to the Limitation Act) was relied upon, that "(t)hough the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in The Kerala State Electricity Board's case." Other judgments cited were Shyam Lal @ Kuldeep vs. Sanjeev Kumar and Ors. AIR 2009 SC 3115; Shivraj Gupta v Deshraj Gupta and Anr. 196 (2013) DLT 14 (DB); Sukhbiri Devi v Union of India 162 (2009) DLT 720 and Sheonandan Prasad Sao v Ugrah Sao and Ors. AIR 1960 Pat 66. The plaint, learned counsel for the appellant argues, states the cause of action as having arisen "... on 06.06.2001 when Jaswant Singh sent a letter to Satake Corporation propounding a forged and fabricated Will dated 05.12.2000 claiming that Rajendra Vikram Singh had FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 6 bequeathed all his movable and immoveable properties unto the appellant....". Thus, learned counsel claims that as the suit was instituted in 2009, it is clearly barred by limitation in as much as the respondents themselves claim that time began to run on 06.06.2001 and in terms of Article 58 or 137 of the Schedule to the Limitation Act, the relief of declaration of ownership of suit properties had to be sought within 3 years of the right to sue accruing.
8. Shri Khosla next submitted that the provisions of Order 23 Rule 1(4) precluded the plaintiffs' suit. It was submitted that the previous suit is deemed to have been abandoned when the plaintiffs' counsel (in the earlier suit) stated that he had not received instructions to prosecute it, and as no leave or consent of the Court to institute a fresh action was sought. Accordingly, under this view, the present suit was clearly barred. It was further argued that even if the previous order amounted to a rejection of the plaint, under Order VII Rule 11, CPC, the remedy of a fresh suit by virtue of Order VII Rule 13 was available only if it was otherwise available and not barred - especially on account of limitation. In the present case, the second suit could not have been maintained because the bar of limitation precluded the plaintiffs from raising the same claim. It was also argued in this context that the rejection of the suit on the earlier occasion in 2007 and the order for dismissal of the suit when the requisite court fee had not been paid amounted to either abandonment of claim, or alternatively rejection of the suit. Reliance was placed on the judgments reported as Nandan Sahu v. Hari Shankar, AIR 1932 FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 7 All 595; Lachhmi Narain v. Shanker Lal and Anr. AIR 1936 (23) AIR ALL 670, especially the following observations:
"...............One further point may be noted that we consider that it is not proper for counsel either in this Court or in the Courts below to merely state to the Court that they have no instructions. Learned Counsel should clearly specify what is the reason of their failing to proceed with the case. It may be that they have not received their fee, it may be that their instructions have been withdrawn or it may be some other reason. But whatever the reason is learned Counsel should clearly state it to the Court. In this case Mr. Khare had filed the pleading on behalf of Lachhmi Narain and his Vakalatnama was on the record and he had, therefore, no reason to state to the Court on a later date that he had no instructions and to attempt to limit his appearance merely to moving an application for adjournment.
8. If Mr. Khare had no reason to state that he had no instructions and to attempt to limit his appearance, the two pleaders, in the present case, equally had no reason to state that they had no instructions and to attempt to efface their appearance completely. I am, therefore, inclined to the view that the dismissal of the appeal in this case was on merits and not for default of appearance. At any rate, this is what the Court purported to do. This is evident not only from the order of the Court but also from the decree drawn up in the appeal where it is mentioned that the appeal was decided in the presence of the pleaders for the appellant."
The judgment reported as The Manager DAV Higher Secondary School v. Civil Judge Rampur and Others, AIR 1984 All 1 was also relied upon.
FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 8
9. As far as the grievance with regard to the appointment of the receiver goes, learned counsel argued that the suit claimed the relief of possession without impleading the owners of the commercial Flat, namely Ms. Geetanjalei Singh and Ms. Aishwarya Singh. Learned counsel pointed out that their applications under Order I Rule 10 CPC have not been disposed of till date and orders affecting their rights have been passed by the learned Single Judge by appointing of the receiver in respect of the said flat. It is argued that the appellant had obtained mutation from the NDMC and transferred the flat in favour of the said Ms. Geetanjalei Singh and Aishwarya Singh long before the institution of the suit. Having regard to these facts, learned counsel argues that the learned Single Judge could not have appointed a receiver in respect of the said suit property. Moreover, it is submitted that the plaintiff did not seek any relief for undoing the earlier transfer in favour of Jaswinder Singh in the year 2001 and the subsequent transfer in favour of the said Ms. Geetanjalei Singh and Aishwarya Singh in 2008. In effect, the order amounted to affecting the true and lawful owners' enjoyment of property rights behind their back, which is impermissible. Likewise, it is argued that the builders who had been impleaded as party should not have been restrained from registering further transfers.
10. Finally, Mr. Khosla submitted that the said owners have spent upwards of `50 lakhs towards (i) property tax, (ii) arrears of maintenance charges, (iii) installation of fire safety measures and (iv) renovation/refurbishing in order to enthuse a prestigious tenant to take the flat on rent at a handsome price which would fund the FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 9 owners' livelihood and education. Assuming that there existed a dispute with regard to the title to the said flat, yet, a case for the appointment of receiver had not been made out because it was no one's contention that the property was being wasted and needed to be preserved through the process of the Court.
11. Thus, the learned Single Judge's observation that "... the Appellant is only going to fritter away the property ..." is contested, and it is argued that the appellant, after the dismissal of the earlier suit (on 12.02.2007), spent over ` 1 crore to refurbish the West End property to such sophistication that a prestigious tenant like Thapar Groups Bilt Paper Holdings was enthused to take it on rent at a handsome price which would initially enable the repayment of the borrowings made for that purpose and later be a source of his livelihood.
12. Accordingly, learned counsel submits that the interest of the plaintiffs could well be secured by the passing of the injunction order in respect of title in possession of the said properties. This was especially so as the appellant had been ready and willing to give an undertaking that in the event of the plaintiffs succeeding in the suit that he would compensate them to the extent of his rental earnings from the suit properties.
13. Learned counsel for the plaintiffs, Shri Vali, on the other hand, defended the impugned order, submitting that the question of limitation was held to be one involving investigation into mixed question of fact and law. In his submission, the learned Single Judge's approach could not be faulted in this regard. It was submitted FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 10 that while there was no doubt as to the public purpose underlying Order VII Rule 11, i.e. to sift out untenable claims at the earliest and thus, to safeguard the Courts from being flooded with worthless litigation, equally, the danger of it becoming a tool for oppression and consequently leading to injustice and denial of access to justice should be guarded against. Counsel submitted that the plaintiffs had never desired to abandon their claims, and their right to seek partition could not be denied. It was submitted that even if the previous order were to be read as one rejecting the suit, yet the subsequent suit was not barred by law, and in fact was permitted by virtue of Order VII Rule 13.
14. It was submitted that the judgements relied upon by the Appellant are irrelevant in view of the facts and circumstances of the present case. It was submitted that there can be no automatic inference that a statement by counsel on behalf of his client that instructions were not forthcoming is to be taken at face value and consequently that the dismissal of the suit ought to be viewed as one recording abandonment of claim. Rather, learned counsel submitted that the Court's endeavour should always be to avoid technicalities in this regard. Learned counsel submitted that the judgement relied upon by the appellant, i.e. Lachhmi Narain (supra), indicated that when a counsel states that his client is not instructing him, the Court should be circumspect in accepting such a submission. In the present case, the Court merely dismissed the suit on the basis of that statement and crucially, there was no determination of the merits of the previous suit, which had proceeded to the stage of trial (with issues having FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 11 been framed as far back as in 2005). Learned counsel also relied upon the proposition that a suit for partition stands on a radically different footing and all the litigants who are parties to it, in law, stand in the position of plaintiffs. Accordingly, it was argued that this litigation being unique, Courts should not dismiss the action lightly or even permit withdrawal. Opportunity is invariably granted to the parties especially in the event when an application for withdrawal is made.
15. It was argued that the judgements relied upon by the appellant all pertain to cases where a testamentary disposition is relied upon by a litigant who approaches the Court to enforce it i.e. seeking Probate or Letters of Administration. In the present case, however, even though a declaration that the Will relied upon by the appellant is not legal is claimed in the suit, that relief is largely subsidiary, with the primary claim being for partition of the suit properties. For such a claim, learned counsel argues that there is no period of limitation.
16. Counsel for plaintiff lastly argued that the Learned Single judge's approach in granting a limited order appointing a receiver can hardly be characterised as unreasonable, having regard to the previous history of the litigation and the propensity of the appellant to cause mischief. It was submitted that the so-called transfers relied upon by the appellant are sham transfers, as is evident from the fact that the vendees or transferees of the commercial property are none other than his own wife and daughter. Moreover, it is argued that the rent which the property fetches is also extremely valuable and unless appropriate orders to secure this rent are made, the plaintiffs would be the left without a remedy in the event of succeeding in their claim FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 12 for partition and consequently for accounts.
17. Before a discussion of the merits of the dispute, it would be necessary to notice the relevant provisions. Order XXIII, Rule 1, which talks of withdrawal and abandonment of a suit, reads as follows:
"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 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 person.
(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 FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 13 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 precluded 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."
Order 7, Rules 11 to 13 read as follows:
11. Rejection of plaint-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law :
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 14 satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper , as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
12. Procedure on rejecting plaint-- Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.
13. Where rejection of plaint does not preclude presentation of fresh plaint-- The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
18. The first question which this Court would address itself to is whether the order, dismissing the previous suit amounted to the Court recording the abandonment of the claim. In this context, the order dated 12.02.2007 in C.S. (O.S.) 1207/2001 recorded that:
"Vide order dated 8.8.2006, four weeks time was granted to the plaintiff to make proper valuation of the plaint and pay ad valorem court fee thereon. In the last six months, the said order had not been complied with. Learned counsel for the plaintiff submits that he is not receiving instructions from his clients who are in the United States. Since the suit is not properly valued nor valuation carried out despite granting of opportunity in this regard, the plaint is liable to be rejected under Order VII Rule 11 CPC. It is ordered accordingly. All the pending applications shall stand dismissed."
The Court is of the opinion that the judgments relied upon to say that the above order amounted to an abandonment are inapt. In Nandan Sahu (supra), Suleiman, J, speaking for the Allahabad High Court, at FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 15 the outset crisply noticed that the matter arose out of a defendant's revision directed against "an order of the Court below setting aside the dismissal of a suit and restoring it to its original number on payment of some costs. It is urged that the Court below had no jurisdiction to act under Order 9, Civil P.C. On two previous dates both the parties were absent and the Court adjourned the case in order that they might attend in person, with a view to take down their statements. On this last date, namely, the 12th January 1931, the defendant with his pleader was present, but the plaintiff was absent. It further appears that his learned pleader made a statement in Court that he had no instructions to go on with the case. The result was that the plaintiff was absent."
The Court upheld the order of restoration, rejecting the defendant-revisionist's argument that the trial court's order amounted to a judgment. Accordingly, it held as follows:
"We are however not prepared to hold that the power given to a Court under Order 10, Rule 4(2) "to make such order in relation to the suit as it thinks fit" does not include a power to dismiss the suit for default of appearance under Order 9."
Further, the judgment in Lachhmi Narain (supra) was in the context of the particular facts of that case, noticed by the Court as follows:
"The facts are as follows in regard to the various suits which were tried together. 4th April 1932 was fixed for issues and 20th and 21st May were fixed for final disposal. On 8th April 1932 Lachhmi Narain made an application on account of his son's wedding, asking that the date should be changed from 20th May. The opposite party raised no objection and the Court fixed the dates of 3rd and 4th June 1932. 3rd June was a holiday and on FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 16 4th June the case was taken up. There were two learned Counsel on behalf of Lachhmi Narain. One of these learned Counsel appeared in Court and moved an application for further adjournment on the ground of a medical certificate stating that his client was ill and had been ill for 5 or 6 days and would be ill for a further 10 days There was also the question of the witnesses who had been summoned for that date. A large number of witnesses had been summoned. Learned Counsel for Lachhmi Narain stated that he did not know whether these witnesses had attended or not and that he had no instructions except to move for adjournment. The Court passed the order that the case must proceed under Order 17, Rule 3, and that if counsel, desired, the evidence of Lachhmi Narain could be taken on commission. Counsel however did not take any further steps in the case.
2. The result was that the Court heard no-evidence on behalf of Lachhmi Narain as none was produced, and two witnesses were tendered on behalf of the opposite party, and the Court passed a decree disposing of the suits on the merits. In this Court it is argued that the case should be treated as one of dismissal for default of appearance and therefore that an appeal would lie against the order refusing restoration under Order 9, Rule 13...."
The Court rejected the argument that the application for restoration had to be allowed, holding that the suit was dismissed after considering merits, including the evidence. The Court pertinently commented as follows as regards the statement regarding lack of instructions made by counsel:
"We consider therefore that the case came under Rule 3, Order 17 and that being so no application lay for restoration and therefore there can be no revision or first appeal from order to this Court. We therefore FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 17 dismiss these two first appeals from order and two revisions with costs. One further point may be noted that we (consider that it is not proper for counsel either in this Court or in the Courts below to merely state to the Court that they have no instructions. Learned Counsel should clearly specify what is the reason of their failing to proceed with the case. It may be that they have not received their fee; it may be that their instructions have been withdrawn or it may be some other reason. But whatever the reason is learned Counsel should clearly state it to the Court. In this case Mr. Khare had filed the pleading on behalf of Lachhmi Narain and his vakalatnama was on the record, and he had therefore no reason to state to the Court on a later date that he had no instructions and to attempt to limit his appearance merely to moving an application for adjournment)..."
In the opinion of this Court, the above judgment does not support the appellant's argument, as it is premised on entirely different circumstances, when the plaintiff did not present his evidence, even while the defendant did so, leading the Court to discuss the merits and render judgment, resulting in a decree.
19. The language and structure of Order 23 Rule 1 facially appears to be one where the plaintiff exercises a conscious choice and seeks to withdraw from the suit. This was brought home forcefully by Sadasiva Aiyar J. delivering the judgment for a Bench of the Madras High Court, in Lakshmanan Chetty v. Muthaya Chetty, 40 Mad. LJ, where it was observed that:
"Order 23, R. 1 of the Civil Procedure Code related to withdrawal of suits. So far as an unconditional withdrawal is concerned, it is of course wholly at the option of the plaintiff and the court has nothing to do FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 18 with it except as regards providing for costs already incurred (See Order 23 Rule 1 Clause I). It is only where he wants some permission that he has to make an application under Clause 2."
A similar view was expressed by the Bombay High Court in Mahant Biharidasji v. Parshotamdas Ramdas, ILR 32 Bom 345. The Chief Justice, Sir Lawrence Jenkins, interpreting the corresponding section of the Old Code, Section 373, stated that:
"It contemplates a withdrawal not of a suit, but from the suit, and such a withdrawal may be either with or without liberty to bring a fresh suit. If a party desires to withdraw from the suit with such liberty, then he must apply to the court to permit him so to withdraw. If he does not desire to have that liberty, then he can withdraw of his own and no order of the court is necessary."
As noticed earlier, the Court in this case, in the previous suit, expressly alluded to Order 7, Rule 11 and rejected the plaint for non-compliance with the previous order regarding valuation and payment of proper court fee. Thus, the Court was of the opinion that the power to reject the plaint under Order 7 Rule 11 (c) had to be invoked, and thus, clearly, the suit was not rejected on the ground that it was barred by law. As a result, this Court is of the opinion that the case law cited with respect to the so-called "deemed" abandonment would have no application to the present set of circumstances.
20. The next aspect which needs examination is the effect of the previous order of 12.02.2007, and whether the present suit is barred. Here again, the Court need search no further than the authority of the Supreme Court judgment in Delhi Wakf Board v. Jagdish Kumar FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 19 Narang, (1997) 10 SCC 192 to the effect that rejection of a plaint under Order VII Rule 11 of the Code of Civil Procedure does not preclude the presentation of a fresh plaint in terms of Rule 13 of the Code. The evident intention of the legislature in creating this provision was to ensure that such later suits, which were not rejected as barred by law, had to be tried on merits. This conclusion is supported by a facial reading of Order 9, Rule 4 and Rule 5(2), which enable the plaintiff to sue afresh, when the suit is dismissed due to his fault for the reasons spelt out in Rules 2, 3 and 5. In both cases, the Code expressly enacts that such fresh suit can be instituted "subject to the law of limitation". Likewise, a suit wholly or partly dismissed under Order 9 Rule 8 results in the plaintiff being "precluded from bringing a fresh suit in respect of the same cause of action." Order 23, Rule 1 bars a fresh suit when a claim is withdrawn without leave of court. Unlike all these, Order 7 Rule 13 expressly enables the plaintiff to file a fresh suit in respect of the subject matter. There is no restriction on this right, unlike in the case of the conditions (regarding the subsequent suit being subject to the law of limitation) under Order 9, Rules 4 and 5.
21. This Court would not rest its findings on the above findings alone. In the present case, the suit claim is one for partition. Concededly, the previous suit had proceeded to such extent that even issues had been framed. The plaintiffs are the daughters of co-owner of the suit property; the other co-owner was the brother. The judgments relied on by the appellant (Kunwarjeet Singh Khandpur; and Shyam Lal ) were grounded upon facts where claims were FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 20 asserted on the basis of the testamentary instrument and either a testamentary or declaratory relief was sought. Shivraj Gupta (supra) was a case where the Division Bench affirmed a rejection of plaint. The suit was premised on the incurring of a legal disqualification to inherit property, by the heirs of the deceased. The Court held, inter alia, that the legal disqualification (i.e. alleged murder) had not been proved. The occasion to pronounce (about when the cause of action arose for claiming the relief of declaration as to the effect of the testamentary instrument), did not really arise, considering that the Court was affirming the dismissal of the suit.
22. The plaintiffs had filed some important orders in respect of the previous suit before the learned Single Judge. These include an order of 25th January, 2005 in which as many as 8 issues were framed. The question of enforceability of the Will relied on by the appellant was also framed as an issue, with the burden cast upon him. The appellant, for reasons best known, has chosen not to produce a copy of the previous plaint, which is essential for a fuller adjudication of the contentions in support of rejection of this suit. Authorities point to the true legal position to be one whereby the court's scrutiny, under Order VII Rule 11 CPC is confined to averments in the plaint, and the list of documents filed along with it (see, Liverpool & London S.P. & I Assn. Ltd v M.V. Sea Success I & Anr 2004 (9) SCC 512).
23. There is authority for the proposition that a claim for partition does not carry any period of limitation. In Annasaheb Bapusaheb Patil & Ors. vs Balwant & Balasaheb Babusaheb 1995 (2) SCC 543, FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 21 it was thus held that:
"In this case apart from the main question which was already held against the appellants, two more contentions were raised in the High Court. They filed an application in the High Court under Order 6 Rule 17 for amendment of the written statement to include some other land for re-partition. On ground of laches, the application for amendment was disallowed. The same was reiterated in this appeal. In view of the findings recorded by the High Court, we do not think that it is a fit case warranting interference by this Court at this distance of time. It was also pleaded that the suit was barred by limitation. It is their case that the partition had taken place prior to the Act 22/85 had come into force, they remained in possession as owners and that, therefore, the suit is barred by limitation. The appellate court disbelieved prior partition. That was also negatived by the High Court holding that the suit was filed after the character of the land from impartibility to partibility had been changed and that, therefore, it was not barred by limitation. We find that the conclusion reached by the High Court is well justified."
The appellant, on the one hand, has not produced the plaint and set of documents filed in the previous suit. Equally, he makes no effort to show how a claim for partition (which is the substantive claim in the present case) is barred. The rejection of the previous suit in no way precluded that claim, because the right to ownership of the properties, (but for the Will propounded by the appellant, the legal and binding effect of which has never been proved, in properly constituted proceedings- his reliance all along being premised on some technicality or the other) is undisputed. In these circumstances, this Court is of the opinion that there are no clear facts entitling rejection FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 22 of the plaint. The impugned judgment and order, to that extent is affirmed.
24. So far as the grievance in respect of the appointment of receiver is concerned, this Court notices that the third party transferees (who are none other than the appellant's wife and daughter) have not approached this Court. Besides, the appellant's argument that he needs the money to repay the borrowing itself is reason enough to issue an order to safeguard the plaintiffs' rights in some manner, which the Court of first instance did. This Court discerns neither irregularity nor unreasonableness either in the approach of the learned Single Judge nor in the application of law. After all, the impugned order is an interlocutory one; the Court has to be mindful that when the rights of the parties are to be settled after a full trial, neither of them is to be prejudiced with a fait accompli, as it were which indeed could well be the consequence but for an order of the kind made in the present case.
25. In view of the above discussion, the Court finds no justification to interfere with the findings and orders of the learned Single Judge; the appeals consequently fail and are dismissed, but without any order as to costs.
S. RAVINDRA BHAT (JUDGE) NAJMI WAZIRI (JUDGE) AUGUST 22, 2013 FAO(OS)684/10, FAO(OS)30/13 & FAO(OS) 31/13 Page 23