Punjab-Haryana High Court
Bashir Ahmad vs Masjit Patti Niyamatpur on 15 February, 1999
Equivalent citations: (1999)123PLR58
ORDER V.K. Jhanji, J.
1. This revision petition is directed against order dated 1.12.1997 of the learned Additional District Judge, Jagadhri, whereby plaintiff (respondent No. 1) has been permitted to withdraw the suit itself against the dismissal of which he had preferred an appeal. As a consequence thereof, appeal has also been allowed to be withdrawn.
2. Plaintiff filed suit for permanent injunction against the petitioner and other nine persons seeking permanent injunction and management of land measuring 56 kanals 5 marlas. The claim of the plaintiff in the said suit was that the suit land is owned and possessed by plaintiff-Masjit and Noordin son of Nathu Ram was appointed its Manager and on his death, Latif son of Fattu being appointed Mutwali Mohtamim-cum-Manager is entitled to manage the affairs of the Masjid and petitioner and other defendants have no right to interfere in his possession and management of the Masjid and the land attached to it. Upon notice of the suit, petitioner as well as other co-defendants appeared and disputed the claim of the plaintiff. The learned trial Court on the pleadings of the parties, framed as many as eight issues and on the basis of voluminous evidence led by the parties, gave a detailed judgment running into almost 18 pages and dismissed the suit. Being aggrieved, plaintiff preferred an appeal before the learned Additional District Judge, Jagadhri. During the pendency of the appeal, plaintiff filed an application to withdraw, the suit and also the appeal. On his application, appeal as well as the suit have been allowed to be withdrawn.
3. Learned counsel appearing on behalf of petitioner has contended that the judgment and decree passed by the trial Court after appraising the evidence led by the parties and hearing the contentions of both the parties, cannot be said to be a mere formality because of dismissal of the suit of the plaintiff, certain rights have accrued in favour of the petitioner and hence, the approach of the learned Additional District Judge in allowing the plaintiff to withdraw the suit itself is patently illegal. In answer to these submissions, learned counsel appearing on behalf of plaintiff has contended that Sub-rule (1) of Rule 1 of Order 23, Code of Civil Procedure, gives absolute right to the plaintiff to withdraw suit at any stage and appeal being continuation of the suit, the Additional District Judge has committed no illegality in allowing the plaintiff to withdraw the suit. Counsel in this regard has cited judgment in Satish Bhardwaj, Advocate v. Dhani Ram and Ors., (1998-2) 119 P.L.R. 73.
4. Sub-rule (1) of Rule 1 of Order 23, Code of Civil Procedure gives absolute right to the plaintiff to withdraw from the suit if no permission to file a fresh suit is sought under Sub-rule (3). The question for consideration is whether that right can be exercised even at the stage of appeal.
5. In Hulas Rai Bail Nath v. Firm K.B. Bass and Co., A.I.R. 1968 S.C. 111, their Lordships of the Supreme Court while opining that 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, did not express any view as to whether a Court, is bound to allow withdrawal of a suit to the plaintiff after some vested rights may have accrued in favour of the defendant.
6. In Kanhaiya and Ors. v. Mst Dhaneshwari and Anr., A.I.R. 1973 Allahabad 2, it has been held that a plaintiff has no right under Order 23, Rule 1(1), C.P.C. to withdraw the suit when rights have accrued to the defendants under the decree. Merely because an appeal has been filed, it cannot be said that no rights have vested in or accrued to the defendant under the decree sought to be challenged.
7. In Basudeb Narayan Singh and Ors. v. Shesh Narayan Singh and Ors., A.I.R. 1979 Patna 73, in this very context, a learned Single Judge of the Patna High Court held that plaintiff under Sub-rule (1) of Rule 1 of Order 23 has a right to withdraw a suit at any stage but 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.
8. In Ram Dhan v. Jagat Prasad Sethi and Ors., A.I.R. 1982 Rajasthan 235, a learned Single Judge of Rajasthan High Court has held that :
"I am of the view that a plaintiff even under Sub-rule (1) of Rule 1 of the Order 23 had no absolute right to withdraw from the suit where some vested right had accrued to the defendant. Before a final decree is passed by the trial Court, the question of any vested right in favour of a defendant may arise only in very limited circumstances, and that would be for the trial Court where such request is made before decision of the case finally. Ordinarily, under Sub- rule (1) of Rule 1 of Order 23, it would not be necessary for the plaintiff to show any formal defect in the suit before making a prayer for its withdrawal without any reservation. But in a suit like partition suit or some other Act, where the defendant acquires any right, the court will consider all the circumstances before accepting the prayer of the plaintiff for withdrawal of the suit. There can be no manner of doubt that where a plaintiff makes a prayer for withdrawal of a suit along with liberty to file a fresh suit, the provisions of Sub-rule (2) of Rule 1 of Order 23 would be attracted. The position for a plaintiff to withdraw his suit without any reservation i.e. without any prayer to allow him to bring a fresh suit in respect of the same subject-matter, would be considered under the provisions of Sub-rule (1) of Rule 1 of Order 23 but in my view the consideration would be different if such request is made during the trial of a suit and during the stage of first appeal or second appeal where the plaintiff has lost his case in the lower courts. There can be no manner of doubt that the appeal is a continuation of the suit, but at the same time a court of 1st appeal or second appeal may not even admit the appeal and can dismiss at the admission stage. It would be certainly unfair to the defendant if a plaintiff having lost in the two courts below and after making arguments for admission of second appeal in the High Court and having not been able to succeed in getting the appeal admitted, may be allowed to withdraw the suit itself by way of absolute right and thus negative the benefit of long trial having culminated in favour of the defendant. It is no doubt correct that there is provision under Sub-rule (3) of Rule 1 of Order 23 that the plaintiff 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, but in my view the award of costs alone can hardly be a just and proper solace to the defendant. It is right that the plaintiff will be precluded from bringing a fresh suit on the same subject matter, but it also cannot be denied that the defendant would not be entitled to use the findings given in such a suit, as' res judicata in subsequent proceedings."
In Feroz and Co. v. Union of India, A.I.R. 1975 J&K 89, it has been held that a plaintiff can withdraw his suit or abandon a portion of his claim under Order 23, Rule 1 only when the suit exists. Where the suit has ceased to exist on account of its dismissal, there is nothing left which the plaintiff may withdraw or abandon until the dismissal is set aside and the suit restored.
9. In Gurnek Singh and Anr. v. Gurbachan Singh and Ors., A.I.R. 1986 P&H 226 and Shri Guru Maharaj Anandpur Ashram Trust, Guna and Ors. v. Chander Parkash and Ors., A.I.R. 1986 P&H 399, this Court has held that where the suit has been dismissed on merits and not on account of any formal defect, withdrawal of suit during the-pendency of appeal cannot be permitted as a matter of right.
10. It is, therefore, clear from the aforementioned judgments that Sub-rule (1) Rule of Order 23, Code of Civil Procedure gives an unqualified right to the plaintiff to withdraw from a suit so long as suit is pending and no-vested rights have accrued in favour of the defendant. Once a suit is decided and decree passed, it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and, therefore, at the stage of appeal, though may be continuation of the suit, plaintiff has no absolute right to withdraw a suit under Sub-rule (1) of Rule 1 of Order 23, Code of Civil Procedure.
11. It is true that in Satish Bhardwaj's case (supra), cited by learned counsel for the plaintiff, a learned Single Judge of this Court has held that the appeal is continuation of the suit and the plaintiff when is not seeking permission of the Court to file a fresh suit, permission to withdraw from the suit has to be granted to him in terms of Order 23 Rule 1, Code of Civil Procedure. From a reading of the aforesaid judgment, I find that suit of the plaintiff had been decreed and no rights had accrued in favour of the defendant. More so, the attention of the learned Judge was not invited to the observation of the Supreme Court in M/s Hulas Rai Baij Nath's case (supra), wherein in the last portion of para 2 of the judgment, their Lordships of the Supreme Court observed as under:
"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 right 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."
Thus, the judgment in Satish Bhardwaj's case (supra) cannot be of any help to the case of the plaintiff.
12. Resultantly, the revision petition is allowed and order of the Additional District Judge, Jagadhri, is set aside with a direction that he shall decide the appeal on merits. Parties through their counsel are directed to appear before the Additional District Judge, Jagadhri on 15.3.1999.