Gujarat High Court
Lhs Of Decd. Khodaji Shivaji vs Mafaji Moptaji on 24 March, 2023
NEUTRAL CITATION
C/SCA/3978/2023 ORDER DATED: 24/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3978 of 2023
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LHS OF DECD. KHODAJI SHIVAJI
Versus
MAFAJI MOPTAJI
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Appearance:
MR RAJESH R DEWAL(1024) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5
MR RM CHAKWAWALA(1519) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5
for the Respondent(s) No. 1,10,11,12,13,2,3,4,5,6,7,8,8.2,8.3,9
MR AJAY S JAGIRDAR(2688) for the Respondent(s) No. 8.1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/03/2023
ORAL ORDER
1. The present petition is filed by being aggrieved and dissatisfied with the order dated 11.05.2022, passed by th the 9 Addl. Civil Judge, Mirzapur, Ahmedabad (Rural) in Regular Civil Suit No.300 of 2005 below Exh.70 and 143, whereby the trial Court has allowed the third party application filed by Sakariben Khodaji Shivaji Thakor - respondent No.8 herein for joining as plaintiff in the abovementioned suit.
2.1 Brief facts of the case are as such that the deceased - Khodaji had filed a Regular Civil Suit No.300 of 2005 for permanent injunction and declaration of the Page 1 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined property situated at Village: Vejalpur, bearing Revenue Survey No. 988 (New Survey No.315 - on renumbering when transferred the said property to Jodhpur Gam, Ahmedabad) admeasuring 5 acre 36 gutha. It is the case of the petitioners that the present petitioners is having the possession of the land. Further, during proceeding of the suit proceedings, plaintiff Khodaji expired on 15.02.2009, leaving behind his legal heirs i.e. petitioners as well as respondent Nos.1 to 7 herein and accordingly, the present petitioners along with said respondents were brought on record of the suit proceedings as a legal heirs.
2.2 It is the case of the petitioners in the present petition that after a period of more than 3 years of the death of deceased Khodaji, all of a sudden, respondent no. 8, by filing an application below exhibit 70, claimed herself as sole daughter of deceased Khodaji. Simultaneously, she filed similar application in another suit proceedings being RCS No. 622 of 1992 and prayed that she may be joined as legal heir of deceased Khodaji. In the said proceedings, deceased Khodaji was defendant. The respondent no. 8, initially moved an Page 2 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined application after lapse of 3 years from the death of deceased - Khodaji before the learned Trial Court in both the proceedings i.e. RCS No.622 of 1992 and RCS No. 300 of 2005 in the year 2012, claiming herself as a sole legal heir of deceased Khodaji. Thereafter, she withdrew the said applications unconditionally from both the suit proceedings after executing various documents by declaring that she raised such a plea under some misconception and she is not a legal heir of deceased Khodaji. That in the proceedings of RCS No. 622 of 1992, the trial Court was pleased to accept the said application and passed an order thereupon and disposed off the said application. Thereafter, the Ld. Trial Court where proceedings was going on being RCS No. 300/2005 did not pass an order permitting to withdraw the said application, however, the Ld. Court below had recorded the said facts in the Rojkam of the said proceedings. That again in the year 2019, respondent no. 8 filed application seeking identical prayer to join her as legal heir of deceased Khodaji in RCS No. 622 of 1992 suit proceedings. The said respondent No.8 moved that application along with delay condone application below Exh. 241 and 242 respectively before the Ld. Trial Court Page 3 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined where RCS No. 622 of 1992 is going on. The Ld. Trial Court where RCS No. 622/1992 is going on, rejected the application of the respondent no. 8 vide order dated 18- 03-2021. Further, again the same respondent moved an application under 0.47 Rule-1 seeking Review of the order dated 18- 03-2021. The Ld. Trial Court was pleased to reject the said review application. Now coming back to the proceedings of RCS No. 300 of 2005, the application which was moved way back in the year 2019 seeking joining party as legal heir, came to be decided by the Ld. Trial Court vide order dated 11.05.2022 which is the subject matter of the present petition and the said order is the impugned order in this petition. Thereafter, the aggrieved respondent filed petition under article 227 of the Constitution of India, challenged the said order rejecting review application. The said Special Civil Application No. 5056 of 2022 is pending before this Hon'ble Court with ad interim relief. The further proceedings of the said RCS No.622/1992 are stayed by the Hon'ble High Court as per interim relief sought by the respondent in the said petition. That after order was passed in RCS No. 622 of 1992, the matter was sought to be transferred by the concern respondent and Page 4 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined accordingly both the proceedings were transferred to other Co-ordinate Bench. Thereafter, the another Bench has allowed the application of the Respondent no.8 and the said order is subject matter of present petition. 2.3 It is the case of the petitioners that now as on date though there is identical issue involved in both the suit proceedings i.e. RCS No. 622/1992 and RCS No. 300/2005, the Ld. Trial Court insisting further proceedings of the suit being RCS No. 300/2005. The proceedings of RCS No. 622/1992 has already been stayed by this Hon'ble Court. As on date two contrary judicial views are there on record, by which in one proceedings prayer for seeking Respondent no.8 to be a legal heir has been rejected in RCS No. 622/1992 and identical prayer in RCS No. 300/2005 was allowed by the another bench where proceedings was sought to be transferred. Hence the present petition is required to be heard together with Special Civil Application No. 5056 of 2022 in the larger interest of the parties as issue involved in both the petition is identical.
2.4 It is further the case of the petitioners that the Page 5 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined respondent no.8 had never claimed her to be a daughter of deceased Khodaji till 2012 nor she ever came forward during the life time of deceased Khodaji. Further, she even not came forward at the time of death of Khodaji in the year 2009 nor claimed her right to be daughter of deceased Khodaji. Prior to 2020, her status was not at all reflected as a daughter of deceased Khodaji on paper anywhere. However to make out a strong papers with the name of daughter of deceased Khodaji, she moved an application before Talati of village Por-Tal-Dist. Gandhinagar in the year 2019 for the very first time by saying that her mother was wife of deceased Khodaji and out of said wedlock, she born after divorce took place between Khodaji and her mother is Dhabuben. The Talati had rejected the said application against which she moved an appeal before the Prant Officer where her application was allowed and now she claimed her to be a daughter of deceased Khodaji.
2.5 It is further the case of the petitioners in the present petition that The petitioners have been able to gather some gross materials to justify the say as the present respondent no.-8 enters in to the agreement to Page 6 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined sale with some land brokers behind whom the higher police officers are there. The said respondent has sold out the entire litigation to said land brokers though she was not the party to the litigation and accepted huge amounts.
2.6 Thereafter, the present petition is preferred by the petitioners under Article 227 of the Constitution of India.
3. Learned advocate Mr. Rajesh R. Dewal appearing for the petitioners has submitted that the trial Court has erred in granting the application at Exh.143 by considering the fact that the respondent No.8 herein is a necessary party and granted permission to implead herself as plaintiff. He has further submitted that the trial Court has committed gross error as respondent No.8 is not related to the deceased as a daughter and the said proposed party - respondent No.8 herein has also waived her right by filing appropriate application and has said that she has no claim in the suit property. He has also raised objection that if anybody is aggrieved by the impugned order by the trial Court, that one can be said to be defendants in the suit. He has further Page 7 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined submitted that the impugned order is passed against the provisions of Order I Rule 10 and against the settled legal positions of law as the said third party is neither necessary nor proper party for the plaint in question, and therefore, the present petition is required to be allowed by interfering in the order passed by the trial Court.
4.1 Per contra, learned senior advocate Mr. R. Sanjanwala appearing with learned advocate Mr. Ajay S. Jagirdar for the respondents has submitted that there is no locus to the present petition in view of the fact that the petitioners herself have filed the application at Exh.92 on 16.01.2019 and the trial Court has recorded the order on 16.01.2019. He has relied on the judgment of the Hon'ble Apex Court in the case of Anurag Mittal Versus Shaily Mishra Mittal reported in (2018) 9 SCC 691 and more particularly paras 10, 11 & 12 are relevant and has submitted that in view of the observations made by the Hon'ble Apex Court, Order XXIII Rule 1 of the C.P.C. gives an absolute right to the plaintiff to withdraw his claim or abandon any part of his claim and therefore, there is no doubt that order Page 8 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined XXIII Rule 1 is applicable to the appeals as well and the appellant has right to withdraw his appeal unconditionally and if he makes such application to the Court, the Court has to grant it, therefore, he has submitted that in that case, the appeal is deemed to have been withdrawn from the date of filing of application, and therefore, he has submitted that once the application is filed for withdrawal, the appeal is considered to be withdrawn.
4.2 He has relied on the judgment of the Hon'ble Apex Court in the case of M/s Hulas Rai Nath Versus Firm K.B. Bass & Co. reported in AIR 1968 SC 111, more particularly paras 2 & 3 are relevant and has submitted that the Court cannot refuse the permission for withdrawal of the suit and cannot compel the plaintiffs to proceed with, if application under Order XXIII Rule 1 is filed, and therefore, he has submitted that once the application is filed by the petitioners herein for withdrawal of the suit, his preliminary objection, about the maintainability of the present petition is at the behest of the present petitioners as the petitioners have already filed an application for withdrawal of the suit, Page 9 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined which is way back in the year 2019.
4.3 He has further submitted the on the perusal of impugned order also which is passed at Exh.70 as well as 143, the trial Court has rightly considered the entire aspect by considering the various judgments of the Hon'ble Apex Court and has also rightly considered the provisions of Order I Rule 10 read with the provisions of Limitation Act and has also rightly granted the application as the petitioners have interest as an heir of deceased, and therefore, her right cannot be denied to implead her as a plaintiff, and therefore, when the petitioners have abandoned his claim for pursuing the suit, the petitioners cannot now challenge impugned order by way of this petition.
4.4 He has relied on the judgment of the Hon'ble Apex Court in the case of Garment Craft Versus Prakash Chand Goel reported in (2022) 4 SCC 181, and has submitted that even in case of some error committed by the Court also, the Hon'ble Apex Court has said that unless it is perverse or is against the evidence available on the record, the Court should not exercise the powers Page 10 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined under Article 227 of the Constitution of the India, and therefore, the present petition is required to be dismissed.
4.5 In rejoinder, learned advocate Mr. Rajesh R. Dewal appearing for the petitioners have submitted by relying on some Rojkam that from the Rajkam, it transpires that pursis, which filed for withdrawal of the suit, is in fact fixed for hearing as per the Rojkam and he has drawn the attention of this Court towards the proceeding dated 14.11.2022 and also towards earlier proceeding dated 16.01.2019, whereby the trial Court has recorded that it is for the hearing of Exh.93 and 225 application and unless the Court pass the order under the provisions of Order XXIII Rule 1, the said pursis, filed by the plaintiffs, cannot be considered in the eye of law, and therefore, the plaintiffs have still right to proceed with the proceedings and object the application of the respondents at Exh.143 and have also right to file this application under Article 227 of the Constitution of India. 5.1 I have considered the rival submissions made at the Bar. I have also considered the preliminary objection Page 11 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined raised at the Bar by learned advocate for the respondents that the petitioners have no locus as the petitioners have filed a pursis, by which the petitioners have declared that the plaint is withdrawn unconditionally and the same is ffiled at Exh.92 on 16.01.2019 in the Regular Civil Suit No.300 of 2005 before the trial Court, and thereafter, the Court has recorded the same on 16.01.2019 when the petitioners have filed pursis at Exh.92 by declaring that he is withdrawing the claim in the suit unconditionally then the suit is considered to be withdrawn on 16.01.2019. 5.2 The judgments of the Hon'ble Apex Court in the case of Anurag Mittal (supra), and more particularly paras 10, 11 and 12 are relevant, which are as under:
"10. In case of a dissolution of marriage, a second marriage shall be lawful only after dismissal of the appeal. Admittedly, the marriage between the Appellant and the Respondent was on 06.12.2011 i.e. before the order of withdrawal was passed by the Court on 20.12.2011. There is no dispute that the application for withdrawal of the appeal was filed on 28.11.2011 i.e. prior to the date of the marriage on 06.12.2011. We Page 12 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined proceed to consider the point that whether the date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. Order XXI Rule 89 (2) of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") provides that unless an application filed under Order XXI Rule 90 of the CPC is withdrawn, a person shall not be entitled to make or prosecute an application under Order XXI Rule 89 of the CPC. In Shiv Prasad v. Durga Prasad,4 the contention of the Appellant therein that an application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the effect is recorded by the Court, was not accepted. It was held that every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting the withdrawal of the application. This Court concluded that the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application. The High Court of Bombay in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council, Panvel5 followed the judgment of this Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The High Court recognized the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would be 4 (1975) 1 SCC 405 5 AIR 2003 Page 13 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined Bom. 238, 239 complete as soon as the plaintiff files his purshis of withdrawal.
11. Order XXIII Rule 1 (1) of the CPC enables the plaintiff to abandon his suit or abandon a part of his claim against all or any of the defendants. Order XXIII Rule 1 (3) of the CPC requires the satisfaction of the Court for withdrawal of the suit by the plaintiff in case he is seeking liberty to institute a fresh suit. While observing that the word abandonment in Order XXIII Rule 1 (1) of the CPC is "absolute withdrawal"
which is different from the withdrawal after taking permission of the court, this Court held as follows:
"12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same Page 14 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined cause of action. Such liberty being granted 6 K.S. Bhoopathy v. Kokila (2000) 5 SCC 458 by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC."
12. Order XXIII Rule 1 (1) of the CPC gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Therefore, the appeal is deemed to have been withdrawn on 28.11.2011 i.e. the date of the filing of the application for withdrawal. On 06.12.2011 which is the date of the marriage between the Appellant and the Respondent, Ms. Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5 (i) is not attracted and the marriage between the Appellant and the Respondent cannot be declared as void."
Further the judgment of the Hon'ble Apex Court in the case of M/s Hulas Rai Nath (supra) and more particularly para 2 and 3 are relevant, which are as under:
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NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined "2. The short question that, in these circumstances, falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed. The language of Order 23, Rule 1. sub-rule (i ), C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is ,-ought under sub-r.
(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- r. (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 tile plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under 0. 8 C.P.C., or a counterclaim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. In the present case. the pleadings in paragraphs 8 and II of the written statement. mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counterclaim, because no provision is shown under which a counter-claim Page 16 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined could have been filed in the trial Court in such a. suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of account and, in fact, the appellant was still contending that there could be no rendition of accounts in the suit, because accounts had already been settled. Even in para 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant, a decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts, no Such right can possibly be held to exist before the Court passed preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In 'these circumstances; at the stage of withdrawal of the suit, Page 17 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined 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 ,my 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 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.
3. On behalf of the appellant, reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi v. Meyappa Chettiar and Others (1), where the Court held:
"Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of theclaim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. ]n suits, for partition, if a preliminary. decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by Page 18 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit."
We do not think, as urged by learned counsel, that the learned Judges of the Madras High Court were laying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiff's withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such it right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties. In any Page 19 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit."
Order XXIII Rule 1 of the Civil Procedure Code, 1908 is as under;
"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 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 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, Page 20 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined 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 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 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 plaintiff. Page 21 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023
NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined 1A.When transposition of defendants as plaintiffs may be permitted.--Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
5.3 In view of the provisions of Order XXIII Rule 1(i) and if I consider, which was rather explained in the above two judgments of the Hon'ble Apex Court and Order XXIII, it can be said that the suit is sought to be withdrawn by the present petitioners, and therefore, it clearly transpires that if the suit is sought to be withdrawn in the year 2019, the petitioners have no right to challenge for impleadment of the present respondent No.8 as a party in the suit and in turn the petitioners have no right to challenge the impugned order by way of filing of the present petition, and therefore, the petition is required to be dismissed on the ground that the petitioners has no right, title or interest in the suit proceedings, and therefore, the present petition is required to be dismissed.
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NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined 5.4 Further, other contention raised by the petitioners is also not in consonance with the law as discussed earlier. The petitioners have no locus, and therefore, the petitioners cannot now challenge the impugned on any count as petitioners have withdrawn the suit by filing pursis.
5.5 It is appropriate to consider the judgment of the Hon'ble Apex Court in the case of Garment Craft (supra), more particularly paras 15, 16 & 17 are relevant, which are as under:
"15. Shailendra Garg was released on bail on 6th May 2017 and within th 10 days of his release on 16 May 2017, he filed an application under Order IX Rule 13 of the Code for setting aside of the ex-parte decree. In particular, it was pleaded that the High Court had failed to issue production warrant for appearance of Shailendra Garg before closing the defence evidence, despite the fact that earlier production warrant had been issued and Constable Jitendra Kumar had appeared seeking clarifications. It was highlighted that Shailendra Garg being in detention, could not follow up the proceedings in the suit and it was very difficult for Page 23 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined him to communicate with and give instructions to his counsel.
16. Upon consideration of the facts, vide detailed reasoned order dated th 24 July 2018, the application under Order IX Rule 13 of the Code was allowed, setting aside the ex-parte decree, restoring it to its original number and listing it for defence evidence. Paragraphs 8, 11 and 12 of the order read thus:
"8. From the certified copy of the proceedings of the suit filed by the applicant/defendant, it is evident that matter was transferred from the Hon'ble High Court to the District Court vide order dated 17.12.2015 and the same was assigned to the Court of my Ld. Predecessor on 18.02.2016. It is recorded in the order dated 14.03.2016 that defendant had been sent to jail on
06.10.2015 and thus found sufficient cause for non- filing of list of witnesses by defendant and therefore gave further time to file list of witnesses subject to costs of Rs.5,000/- and fixed the matter for 22.04.2016. On 22.04.2016, none had appeared on behalf of plaintiff whereas associate counsel for defendant had appeared who made further submissions that defendant is in judicial custody and matter was adjourned for 3.00 PM and at 3.00 PM the associate counsel produced the certificate issued by jail dated 24.01.2016 as per which defendant was in JC in connection with FIR bearing Page 24 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined no.422/2014 in Jaipur Jail from 06.10.2015 till 24.02.2016. Therefore, the Court was of the opinion that the defendant's counsel should have moved an application for issuance of production warrants and since same was not moved the case was adjourned for DE for 31.05.2016 subject to further cost of M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 5 of 9 Rs.5,000/-. On 11.05.2016, file was again taken up on an application filed by the defendant for issuance of production warrants and accordingly production warrants were issued in the name of SSP concerned for 31.05.2016. On 31.05.2016, the counsel for the plaintiff as well as counsel for the defendant appeared and one Ct. Jitender appeared from the Jaipur Jail who filed some written clarifications sought from (though it should be by) concerned Jail Superintendent whether defendant is on bail in the said matter or not and the Hon'ble court found the said clarification baseless and directed against Jail Superintendent to produce the defendant and the matter was adjourned for 08.06.2016. On 08.06.2016, in view of the circular of the Hon'ble High Court, matter was sent back to the Ld. District Judge to transfer the case to the Hon'ble High Court. Thereafter, on 10.08.2016, the matter was again sent to the Ld. ADJ and then matter was listed for 22.08.2016. On 22.08.2016, the Court fixed the case for DE for Page 25 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined 09.09.16. On 09.09.2016, proxy counsel for the defendant has appeared and filed an application for issuance of production warrants. The Court observed that it is incline to issue production warrants provided proper affidavit filed either by plaintiff or his counsel that defendant is actually happened to be in jail till date along with particular of the case and that he has not been released from jail and court adjourned the matter for 04.11.2016. On 04.11.2016, only plaintiff counsel has appeared but M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 6 of 9 none appeared on behalf of defendant, hence after noting down the previous proceedings, 4 DE was closed and case was listed for final arguments for 07.11.2016. On 07.11.2016, the case was fixed for clarifications for 08.11.2016 and on 08.11.2016 judgment was passed. xxx
11. Since technically on 04.11.2016 defendant was not proceeded ex parte hence in technical sense the judgment cannot be said as an ex parte judgment but actually this is an ex parte judgment as for all practical purpose defendant has been proceeded ex parte on 04.11.2016 when his DE was closed in his absence. Hence I consider the judgment dated 08.11.2016 as ex parte judgment. Therefore, in my view application U/o 9 Rule 13 CPC filed by the defendant is maintainable.
12. Now coming to the merits. From the aforesaid Page 26 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined order sheets, it is evident that the fact of defendant being in JC was intimated by the defendant's counsel on 22.04.2016 and in fact thereafter Ld. Predecessor has issued the production warrants on 11.05.2016 for production of the defendant from the jail. But he was not produced by the Jail Superintendent from Jaipur jail and court has again directed to produce him for 08.06.2016. But in between matter was transferred to the Hon'ble High Court and then again transferred to the District Court for 09.09.2016. On 09.09.2016, my Ld. Predecessor was not sure that accused is in JC therefore she has asked for the affidavit of the counsel for the defendant regarding the defendant being still in JC on 09.09.2016 and apparently same was not furnished when the case was listed on 04.11.2016. In fact some proxy counsel appeared on behalf of applicant/ defendant on that day to apprise the status of defendant whether he was in JC or not, due to which court closed the DE. As M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 8 of 9 averred by the defendant, he was in JC and only released from jail on 06.05.2017. This fact has not been contradicted by the applicant/ plaintiff. Therefore in my view there was no fault for his nonappearance for leading DE or not filing the list of witnesses as same was beyond his control. The record shows that some proxy counsel might be appearing on his behalf but Page 27 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023 NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined when a person remains in jail and that too in Jaipur jail it become very difficult to give instructions to his counsel on each and every date. Even the counsel also become lethargic as he might not be getting his fees therefore even proxy counsel was not appeared on 04.11.2016 due to which DE was closed. Hence in these circumstances, in my view there is sufficient ground to set aside the order dated 04.11.2016 closing DE in the interest of justice."
17. Thereupon, the respondent preferred a miscellaneous petition under Article 227 of the Constitution of India, which vide the th impugned order dated 4 July 2019 has been allowed primarily for the reason that the counsel for the appellant had applied and taken certified copy of the judgment dated 8th November 2016 in December, 2016 which shows that the appellant was represented by his counsel even at that stage. The contention of the appellant that he acquired knowledge of the decree only after his release from th custody on 6 May 2017 was wrong. In view of the aforesaid facts, the trial court should not have accepted the argument that the appellant and his counsel were not in communication during the period when the appellant was in judicial custody. Earlier, the application for reopening the defence evidence was filed by pairokar of the appellant."
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NEUTRAL CITATION C/SCA/3978/2023 ORDER DATED: 24/03/2023 undefined 5.6 Therefore, this Court cannot exercise the powers under Article 227 of the Constitution of India and the impugned judgment is otherwise found just and proper. Therefore, on all counts, the present petition is required to be dismissed.
6. In view of aforesaid observations, the present petition is dismissed.
7. This Court feels that now-a-days, this has become an emerging trend to file such litigation with some ulterior motive by abusing process of law and this Court has taken serious note of this conduct of the present petitioner and this is a fit case where the Court could have imposed the heavy cost on the petitioner but considering the peculiar facts and circumstance of this case, this Court is not imposing any cost, and therefore, no cost.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 29 of 29 Downloaded on : Sun Sep 17 22:58:59 IST 2023