Orissa High Court
Dinabandhu Sahoo vs Budhi Debi (Dead) (And After Her) ... on 7 May, 1990
Equivalent citations: AIR1991ORI215, AIR 1991 ORISSA 215
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Can an appellant withdraw the suit, when the appeal is pending, is the ultimate question that falls for consideration. This appeal is directed against the judgment and decree of dismissal passed by the learned Subordinate Judge, Puri, dismissing the suit for declaration of title of the plaintiff-appellant in respect of the suit property, instituted on the allegations that the suit properties were purchased benami in the name of defendant-respondent Budhi Debi, by the plaintiff-appellant. The challenge of the said defendant-respondent was that the suit property has been acquired by utilisation of her own funds, without any aid from the plaintiff-appellant. The suit had been dismissed on the finding that the plaintiff-appellant had failed to discharge the onus of proving benami acquisition.
2. The defendant-respondent Budhi Debi died on 29-4-1985. A memorandum was filed by the appellant that he being the sole heir of the deceased, by application of Section 15 of the Hindu Succession Act, he had inherited whatever interest the deceased respondent had, even without entering into any controversy whether the findings of the trial court were correct. One Narasingh Parida filed an application to be impleaded as a party-respondent under Order 22, Rule 10(1), Code of Civil Procedure, 1908 (in short 'the Code') claiming that the properly in question had been willed in his favour by a registered will dated 11-12-1975. After considering the objections filed, the application was allowed and a subsequent application filed by the plaintiff-appellant to recall the order was dismissed. During the hearing of the appeal, a petition has been filed by the plaintiff-appellant seeking permission to withdraw the suit challenged in this appeal. A counter affidavit on behalf of impleaded Narasingh Parida has been filed, stating that the prayer is impermissible. Another application has been filed to declare the said Narasingh Parida as major and permit him to contest the appeal in person. In view of the respective contestions, it is to be seen whether the prayer of the appellant to withdraw the suit out of which this appeal arises is maintainable.
3. It is submitted on behalf of the appellant that the right to withdraw a suit is an unqualified right, where permission of a Court to file a fresh suit is not asked for. This has been rebutted with the submission that when the withdrawal is likely to cause prejudice to the defendant, the permission can be refused. It is contended on behalf of impleaded Narasingh Parida that the intention of the appellant is to wipe out the effect of result of the suit and the evidence recorded therein. It is submitted that a valuable right has accrued in his favour and he has been put to great expenses for fighting this litigation. Reliance has been placed on a decision of the Allahabad High Court reported in AIR 1971 Allahabad 41 : (1970 All LJ 732) (Vidyadhar Dube v. Harcharan), to additionally contend that withdrawal cannot be granted at the appellate stage. On behalf of the appellant it has been submitted that the powers of withdrawal under Order 23, Rule 1 are equally applicable at the appellate stage. The impleaded party was not a party in the suit and therefore, the question of his having been vested with any right does not arise. The controversy raised is interesting. Two types of situations are envisaged in Sub-rule (1) and Sub-rule (3) of Order 23. In the former case, at any time after institutions of the suit the plaintiff may abanden his suit or part of his claim. In the latter case, permission is needed to institute a fresh suit in respect of the subject-matter for which the abandonment in full or part is made, Sub-rule (4) makes it clear that where the plaintiff abandons a suit or part of a claim under Sub-rule (1), or withdraws 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. It is significant to mention here that the heading of Order 23 is "Withdrawal and Adjustment of Suits". Rule 1 is also described as relating to "Withdrawal of suit or abandonment of part of claim." Even though Rule 1 has been substituted for the old Rule 1, the new Sub-rule (1) of Rule 1 is substantially identical with the old Sub-rule (1), the only difference being that in place of the words "withdrawn his suit", the words "abandons his suit" have been substituted. Sub-rule (1) gives an unqualified right to the plaintiff to abandon his suit and if no permission to file a fresh suit is sought under Sub-rule (2) of Rule 1, 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. The Rule enacted in Order 23, Rule 1 is a statutory recognition of a legal principle permitting withdrawal or abandonment of a suit or part of a claim, and barring institution of a claim abandoned in a previous suit, unless certain conditions are fulfilled, including permission of the Court to institute a fresh suit. The language of Order 23, Rule 1, Sub-rule (1), 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 3, or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. (See AIR 1968 SC 111 : Hulas Rai Baij Nath v. Prim 1968 K.B. Base and Co.).
4. A Full Bench of the Madras High Court had considered the question whether a Court of appeal has power to grant permission to withdraw a suit with liberty to file a fresh suit. It was answered in the affirmative. ILR (1917) 40 Mad 259 : (AIR 1918 Mad 1287) Balide Ramayya and five Ors. v. Pragda Panavva 1. The ratio in my view is applicable to cases where withdrawal of suit simpliciter is sought for, without liberty to file fresh suit. This Court's amendment to Order 23, Rule 1 permits withdrawal till the date of passing of preliminary decree. On a combined reading of Order 23, Rule 1 and Section 107(2) of the Code, it appears that the principles governing Order 23, Rule 1 also extend to appeals, and in appeal also withdrawal of the suit can be permitted. The question may be slightly different where some right has accrued in favour of the defendant. In AIR 1973 Allahabad 466 (supra) Pal Singh v. Charan Singh, the Court was considering the question whether plaintiff can withdraw a suit even at the appellate stage where the suit had been dismissed. Court held that even before the appellate court, the plaintiff has an unqualified right to withdraw the suit without seeking permission to file a fresh suit on the same subject-matter. It also held that the findings recorded on the issues arising in the suit do not confer any vested or substituted right on the defendants. The decree of dismissal of a suit by itself does not vest any right on any part to the suit. There is no substance in the submission made by the learned counsel for impleaded impleaded party that vested right had accrued in favour of his client, which was sought to be defaced by the proposed withdrawal. I am in agreement with the view expressed by the Allahabad High Court in Suraj Pal Singh's case (supra) in preference to the view expressed by the said Court in the earlier decision reported in the case of Vidyadhar Dube (supra). Permission is granted to the plaintiff-appellant to withdraw the suit.
5. Now the question that survives for consideration is the entitlement of the impleaded party for costs. A harmonious construction of Order 23, Rule 1, Sub-rule (3) makes it clear that on the question of costs, the entitlement of costs shall be that of the defendant who had a part in the adjudicatory process. An impleaded party does not belong to that category. In the instant case, Narasingh was impleaded after the death of the original defendant. He is not entitled to any costs. No order is necessary to be passed on the application filed for his declaration to be a major, in view of my finding that the plaintiff-appellant is to be permitted to withdraw the suit. The same is accordingly disposed of.
A contention was also raised on behalf of the impleaded party about the non-maintainability of the suit in view of promulgation of the Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988). I have not dealt with that question in view of the fact that permission to withdraw the suit has been granted.
6. In the result, the suit (C.S. No. 101 of 1974) instituted in the court of the Subordinate Judge, Puri, is permitted to be withdrawn without liberty to file a fresh suit on the original subject-matter of the suit.
7. The appeal is accordingly disposed of.