Himachal Pradesh High Court
Satish Kumar & Others vs Tarsem Singh & Others on 17 November, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.160 of 2007.
Judgment Reserved on: 07.11.2017
.
Date of decision: 17.11.2017
Satish Kumar & Others ....Appellants-Defendants
Versus
Tarsem Singh & Others ....Respondents-Plaintiffs
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellants: Mr.Ramakant Sharma, Senior Advocate
with Ms.Soma Thakur, Advocate.
For Respondents: None.
Sandeep Sharma,J.
This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 22.1.2007, passed by learned Additional District Judge, Fast Track Court, Una in Civil Appeal No.223/2K RBT 24/04/2K, reversing the judgment and decree dated 22.9.2000, passed by learned Sub Judge (II), Una, H.P., whereby suit of the plaintiff has been dismissed.
2. Briefly stated facts, as emerged from the record, are that the plaintiff filed a suit for possession of land measuring 0-17-25, bearing Khewat No.70, Khatauni 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 2No.148, Khasra Nos.934 (0-16-34) and 935 (0-01-11), situate in village Jankaur, Tehsil and District Una, as entered in Jamabandi Misal Haqiat Bandobast for the year 1987-88 .
(hereinafter referred to as the 'suit land'). It is averred by the plaintiff that she is owner of the suit land and being widow and old lady, she is not in a position to cultivate the suit land. It is further averred by the plaintiff that the defendant is a very head strong person, who, without any right, title and interest, taking the undue benefit of the weakness of the plaintiff, took forcible possession of the suit land about a year back. It is the case of the plaintiff that she being lady used to take help from the defendant in the cultivation of the suit land and the defendant was put into permissive possession. It is further averred by the plaintiff that in the year 1982 the defendant left the possession and the plaintiff came into possession, but, about a year back, the defendant took forcible possession and his possession over the suit land is only that of a trespasser and he has no right to retain the possession of the suit land. It is averred by the plaintiff that she asked the defendant to deliver the possession of the suit land to her, but the defendant has refused to do so. In this background, the plaintiff filed a suit for possession of the suit land against the defendant.
3. Defendant, by way of detailed written statement, refuted the aforesaid claim having been put forth on behalf of ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 3 the plaintiff on the grounds that the plaintiff has no locus-
standi to file the present suit and her suit is barred under Section 12 CPC and under Order 23 Rules 1 & 4 CPC being .
on the same cause of action as she had earlier filed a Civil Suit No. 252 of 1975 in the Court of Senior Sub Judge, Una, which was dismissed as withdrawn on 5.4.1977. Apart from above, defendant also contested the case of the plaintiff on merits by stating that he is coming in possession of the suit land since long and he has become owner of it by way of adverse possession and in the alternative if he is found in possession of the suit land as a tenant then he has become owner of it by acquisition of proprietary rights. In this background, the defendant prayed for dismissal of the suit filed by the plaintiff.
4. Learned trial Court on the basis of pleadings of the parties framed the following issues:-
"1. Whether the plaintiff is owner of the suit land and is entitled to the relief of permanent injunction, as alleged? OPP.
2. Whether the defendant is tenant over the suit land, as alleged? OPD.
3. Whether in the event of defendant not succeeding in issue No. 2, he has become owner of the suit land by adverse possession, as alleged? OPD.
4. Whether the plaintiff has no locus-
standi to file the suit? OPD.
5. Whether the suit is without any cause of action? OPD.::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 4
5-A. Whether the suit is not maintainable being barred by Section 12 CPC read with Order 23 Rule 1(iv) CPC? OPD.
6. Relief."
.
5. Learned trial Court vide judgment and decree dated 22.9.2000 dismissed the suit of the plaintiff.
6. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, plaintiff preferred an appeal under Section 96 of the Code of Civil Procedure in the Court of learned Additional District Judge, Fast Track Court, Una, who, taking note of the pleadings as well as evidence adduced on record by respective parties, allowed the appeal, set aside the judgment and decree passed by learned trial Court and decreed the suit of the plaintiff.
7. In the aforesaid background, appellant-
defendant filed instant Regular Second Appeal, laying therein challenge to the judgment and decree passed by learned Additional District Judge, Fast Track Court, Una, whereby suit of the plaintiff was decreed, with a prayer to quash and set aside the same.
8. This Regular Second Appeal came to be admitted on the following substantial question of law:-
"(1) Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of the provisions of order 23 rule 1 sub-rule (4) of the Code of Civil Procedure?::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 5
(2) Whether the learned lower appellate Court being last court of fact was right in not discussing the entire oral as well as documentary evidence as .
required of it in view of the law laid down by the Apex Court reported in 2006(9) SCC 663, 2005(10) SCC 243, 2005(12) SCC 186, 2001(8) SCC 173, 2001(4) SCC 756, 2000(5) SCC 652?
(3) Whether the impugned judgment and
decree is the result of complete
misreading as well as
misappreciation of Exhibit D1 to D5 Ext.DX?
(4) Whether the impugned judgment and decree is the result of non-
consideration of the provisions of H.P. Tenancy and Land Reforms Act, 1972?"
9 Before ascertaining the correctness of arguments having been made by learned counsel representing the appellants-defendants qua the validity of impugned judgment passed by learned first appellate Court as well as exploring answers to the aforesaid substantial questions of law, it may be noticed that despite repeated opportunities, none put in appearance on behalf of the respondents.
Perusal of order dated 29.11.2011 suggests that Shri Tara Singh Chauhan, Advocate, was permitted to withdraw from the case since none had come forward to impart instructions to him. Vide aforesaid order, respondents were ordered to be proceeded ex-parte, but this Court, taking note of the fact that the matter is to be heard finally, directed the Registry of this Court vide order dated 10.7.2017 to issue actual date ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 6 notice to the respondents intimating therein the next date of hearing i.e. 21.8.2017. Despite service of actual date notice issued by this Court, none of the respondents chose to put in .
appearance. Even today, despite repeated pass-overs neither respondents themselves nor any advocate on their behalf put in appearance and as such, this Court has no option but to proceed to decide the case at hand on the basis of material available on record.
10. I have heard learned counsel representing the appellants-defendants and gone through the record of the case.
11. Keeping in view the text of substantial questions of law formulated hereinabove vis-à-vis controversy involved in the case, this Court intends to take all substantial questions of law together for adjudication.
12. Having carefully perused pleadings and evidence adduced on record by the respective parties vis-à-vis impugned judgment of reversal passed by learned first appellate Court, this Court finds no force in the arguments of Shri Ramakant Sharma, learned Senior Counsel duly assisted by Ms.Soma Thakur, Advocate, that Court below has erred in not discussing the entire oral as well as documentary evidence while reversing the findings returned by learned trial Court. It clearly emerge from close scrutiny of impugned judgment passed by learned first appellate Court ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 7 that Court below, while differing with the findings returned by learned trial Court, discussed in detail evidence led on record by the respective parties, be it ocular or documentary.
.
It is another matter that Court, after having examined evidence led on record by respective parties, proceeded to differ with the findings returned by the trial Court, who, while dismissing the suit of plaintiff, held defendant into possession of the suit land as a tenant. It also emerge from close reading of the impugned judgment that first appellate Court, while differing with the aforesaid findings of learned trial Court, has specifically recorded its own findings, hence, it cannot be said that learned first appellate Court has failed to appreciate the entire evidence led on record by respective parties, while decreeing the suit of the plaintiff.
13. During proceedings of the case, this Court had an occasion to peruse evidence led on record by respective parties, perusal whereof certainly compel this Court to agree with contention raised by Shri Ramakant Sharma, learned Senior Counsel, representing the appellants, that learned first appellate Court, while setting aside the findings returned by learned trial Court, misread, mis-interpreted and mis-appreciated the provisions of Order 23 Rule 1(4) of the Code of Civil Procedure (for short 'CPC') as well as evidence available on record.
::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 814. In the case at hand, as clearly emerge from the pleadings, plaintiff in her suit for possession of suit land, detail whereof has been given hereinabove, categorically .
admitted that she being old and widow lady used to get the help of the defendant in cultivation of the suit land and she had put the defendant into permissive possession of the suit land. It is own case of the plaintiff that defendant left permissive possession in the year 1982, whereafter suit land remained in her possession, but subsequently after one year defendant forcibly took the possession of the suit land and as such defendant being stranger to the suit land has no right to remain in possession unlawfully. Defendant, while refuting the aforesaid claim put forth by the plaintiff, categorically stated before Court below that suit is barred under Section 12 and Order 23 Rule 1(4) of CPC since plaintiff had earlier filed Civil Suit on the same cause of action, which was subsequently withdrawn by her on 5.4.1977. It also emerge from the record that instant suit was earlier decided on 25.6.1994, but subsequently same was remanded by learned District Judge, Una in an appeal by framing one additional issue No.5A with a specific direction to give fresh findings after hearing the parties.
Issue No.5A, famed at the time of remand, is read as follows:-
"5-A. Whether the suit is not maintainable being barred by Section 12 CPC read with Order 23 Rule 1(iv) CPC? OPD.::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 9
15. Aforesaid issue came to be decided in favour of the defendant. Defendant with a view to prove its case placed on record copy of plaint Ex.DX filed in Civil Suit .
No.252/1975, titled: Indro vs. Dhania, Ex.DY, copy of order dated 5.4.1977 and Ex.DZ, copy of statement made by plaintiff while withdrawing the aforesaid suit.
16. Shri Ramakant Sharma, learned Senior Counsel, while inviting the attention of this Court to Ex.DS, copy of plaint filed in earlier suit, vehemently contended that bare perusal of same suggests that subsequent suit filed by the plaintiff is replica of earlier suit. While referring to para-2 of plaint, learned Senior Counsel contended that contents of the same are verbatim to earlier suit filed by the plaintiff and as such, finding of learned first appellate Court that instant suit is not barred by the provisions of Order 23 Rule 1(4) CPC because same has been filed on different cause of action, is totally contrary to the record and as such present suit deserves to be dismissed.
17. This Court, after having perused averments contained in the plaint of Civil Suit No.252/75, finds that contents of instant suit are verbatim to that of earlier suit filed by the plaintiff and moreover there is no mention, as such, of previous suit having been filed by the plaintiff. It also emerge from Ex.DX that plaintiff had filed suit qua the land which is/was subject matter of the present suit and ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 10 parties were also same. Similarly, perusal of Ex.DY i.e. copy of order dated 5.4.1977 clearly suggests that suit was withdrawn by the plaintiff of her own without there being any .
stipulation/condition. Rather, statement of plaintiff Ex.DZ suggests that suit was withdrawn unconditionally and without seeking permission from the Court below for filing fresh one in terms of Order 23 Rule 1(4) CPC. At this stage, it would be apt to take note of aforesaid provisions of law, which is reproduced hereinbelow:-
"23(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) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(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 of the subject-matter of such suit or such part of the claim.::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 11
(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."
18. Careful perusal of aforesaid provisions of law clearly suggests that plaintiff, at any time, after institution of a suit, may abandon his suit or abandon a part of his claim against any of the defendants. But, where plaintiff is minor or other person to whom the provisions contained in rules 1 to 14 of Order 32 of the CPC applies, neither the suit nor any part of the claim can be abandoned without the leave of the Court. Order 23 Rule 1(4) specifically provides that where plaintiff withdraws from a suit or part or a claim without the permission, as referred to in sub-rule (3), he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
19. In the case at hand, this Court, after having carefully perused Exts.DX, DY and DZ has no hesitation to conclude that the plaintiff, while withdrawing Civil Suit No.252/1975 (Ex.DX), nowhere procured permission of Court below to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of subject ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 12 matter of such suit or such part of the claim. Though, in the case at hand, this Court is convinced and satisfied that there is no specific averment with regard to subsequent .
development, which compelled the plaintiff to file fresh suit on the same cause of action, but, even then story put forth by the plaintiff, who by introducing PW-2 Partapa made an endeavour to prove on record that the defendant had left permissive possession in the year 1982, whereafter for quite considerable time PW-2 Partapa cultivated the suit land, could not be accepted by learned first appellate Court in the absence of specific pleadings, if any, made by the plaintiff in this regard. Careful perusal of plaint having been filed by the plaintiff in the instant case, nowhere suggests that after 1982, when allegedly defendant had left permissive possession, plaintiff handed over the suit land to PW-2 Partapa for cultivation, there is no whisper in the plaint with regard to cultivation of land after the year 1982 by PW-2 Partapa. New story with regard to cultivation of land by PW-
2 Partapa came to be introduced by the plaintiff during her evidence and as such learned first appellate Court below erred in taking into consideration statements made by PW-1, PW-2 and PW-3, wherein they unequivocally stated that after the year 1982, land came to be cultivated by PW-2 Partapa.
It is well settled that parties cannot go beyond their pleadings. Since no case is/was set up in the plaint with ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 13 regard to cultivation of suit land by PW-2 Partapa after alleged abandonment of possession by defendant in the year 1982, evidence, if any, led on record by the plaintiff is/was of .
no relevance and could not be looked into by the Court below.
20. In this regard reliance is placed upon the judgment of Hon'ble Apex Court in Ram Sarup Gupta (dead) by LRs. vs. Bishun Narain Inter College and others, AIR 1987 SC 1242, wherein the Court held as under: r "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed, in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance if the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 14 found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the .
question of absence of pleadings in appeal."
(emphasis supplied)
21. True, it is, that the plaintiff being original owner of the suit land is/was well within her right to recover the possession of the suit land, but, as has been discussed hereinabove, earlier suit filed by her on the same cause of action against same party qua the same suit land was withdrawn by her without obtaining any permission from Court below in terms of Order 23 Rule 1(4) CPC for filing fresh suit and as such she is/was precluded from filing fresh suit on the same cause of action. Moreover, this Court finds from revenue record, adduced on record by the respective parties, that though the plaintiff has been continuously shown to be owner of the suit land, but revenue record also reveals that the defendant is also coming in possession of the suit land since 1966-67 and there is no evidence led on record by the plaintiff, suggestive of the fact that Partapa ever cultivated the suit land. There is no revenue entry available on record suggestive of the fact that name of PW-2 Partapa came to be recorded in revenue record on the basis of cultivation.
22. In this regard reliance is placed upon the judgment of Hon'ble Rajasthan High Court in Hari Ram vs. ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 15 Lichmaniya and others, AIR 2003 Rajasthan 319, wherein it has been held as under:-
"16. It is true that the party is required to take .
permission from the Court under Order 23, Rule 1(3) of the C.P.C. only if party wants to institute a fresh suit in respect of the same subject-matter. Order 23, Rule 1(3), C.P.C. is not dealing with the situation where before withdrawal of suit, the plaintiff files another suit and thereafter, withdraws earlier suit, The Court can grant permission to file fresh suit only on fulfillment of the requirements under the provisions of Order 23, Rule 1(3). When procedure has been given in the Code of Civil Procedure for filing fresh suit after institution of one suit by the plaintiff, then it excludes the procedure by which the parties, on: their own whims and wish can file fresh suit and bye-pass the procedure and make the provisions of law nugatory. Not only this but it appears that the argument of the learned counsel for the petitioner came by ignoring not only above legal position, but has been advanced without noticing true meaning of effect of Ss.10, 11 and 12 and Order 2, Rr.1 and 2, C.P.C. and other relevant provisions of C.P.C. Fundamental aim and object is to avoid multiple suits may it be founded on same cause of action or may be relating to same subject-matter. Section 12 bars the plaintiff from instituting "further suit" based on and in respect of such cause of action, which was cause of action in earlier suit. Section 10, C.P.C. says "Court shall not proceed with the trial," Section 11, C.P.C. says "the Court shall not try any suit or issue," (i) "matter directly and substantially in issue; or (ii) issue subsequently raised and has been heard and finally decided;" Proviso IV of Section 11 even bars not only grounds of attack but also defences. Section 12, C.P.C. "bars further suit" by the plaintiff. Order 9, Rule 9 bars fresh suit in case suit is dismissed under Rule 8 of Order 9, C.P.C. Further a fresh suit is also barred under Order 22, Rule 9 and Order 23, Rule 1(4), C.P.C. Legislative intention is more than clear in putting bar against further suit and re-agitation of issues already ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 16 raised and decided, bar against institution of fresh suit, bar against proceedings with suit or trial of the new suit. The Civil Procedure Code itself contains provisions like Order 9, Rule 4 .
and Order 23, Rule 1(3), C.P.C., which permits institution of fresh suit by the plaintiff. There is no provision in law, which permits institution of more than one suit by the plaintiff for one subject-matter with same cause of action. By necessary implication it can be held that if plaintiff withdraws a suit without seeking permission from the Court to institute a fresh suit for the subject-matter, he as well his successor and person claiming through him are precluded from instituting fresh suit as well as precluded from re-agitating the issues, which were involved in former suit raised by the plaintiff and became subject-matter of issue on the basis of ground of attack or defence set up by the defendant because withdrawal of suit by plaintiff without permission amounts to not only withdrawal of his entire claim in the suit, but also amounts to conceding to grounds of attacks of other party. This view is fully supported by the provisions made in Ss. 10 and 11, C.P.C. also. Section 10, C.P.C. prohibits trial of the suit whereas Section 11, C.P.C. prohibits not only trial of suit but also trial of issue irrespective of burden of proving the issue. The plea that issues have not been "heard and decided"
is not available to the plaintiff in such case of withdrawal of suit, even if principle of res judicata may not be applied strictly even then it amounts to abandonment of claim by plaintiff and conceding to pleas of defendant on the same analogy of reasoning given by the Hon'ble Supreme Court in the case of Sarguja Transport Service case reported in AIR 1987 SC 88 and Full Bench decision of this Court in S.B. Civil Special Appeal No. 760/1995, Hanuman Singh v. B.O.R., decided on 17-5-2002 : (AIR 2002 Raj 365). Once suit is filed in Court, as far as possible dispute between the parties must be settled completely, which will be not only in the interest of the parties to the suit, but it will be in favour of public interest also as it will avoid dragging of the parties to Court again and again, it ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 17 will save the precious time of the Courts, it will avoid multiplicity of suits, it will result in avoiding conflicting judgments and orders and it will settle the dispute once for all. By this time the Court can be .
made available for deciding bona fide litigation instead of Court's becoming tool in the hands of litigant to provide litigant mould the proceeding of trial of suits to keep the dispute alive for indefinite period and to compel other party to file another suit for the decision on the issues, which were already subject-matter in Issues in the suit."
23. In the case at hand, defendant in his statement categorically stated before the Court below that he had been cultivating the suit land since 1947 and at no point of time he had handed over possession of the suit land to the plaintiff. It duly stands proved on record from the oral as well as documentary evidence that defendant had been continuously cultivating the suit land since 1947 and as such plea of the plaintiff, which otherwise is not borne out from the pleadings, that she had handed over the possession of the suit land to PW-2 Partapa for cultivation is not tenable. This Court further finds from the record that there is no mention, if any, in the statement of plaintiff i.e. Ex.DZ, made by her at the time of withdrawal of earlier suit that the defendant has handed over possession of the suit land to the plaintiff and as such she intends to withdraw the suit.
Hence, this Court has no hesitation to conclude that finding of learned first appellate Court, whereby it proceeded to reverse the findings of learned trial Court below that the suit ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 18 is barred by Section 12 and Order 23 Rule 1(3) of CPC, is not tenable being contrary to law and as such same deserves to be set aside. Moreover, as is evident from the discussion .
made hereinabove, plaintiff, while filing instant suit before the trial Court, suppressed material fact with regard to filing of earlier suit and withdrawal thereof. Similarly, there appears to be no dispute with regard to the fact that subsequent suit, which is subject matter of present appeal, came to be filed on same cause of action against same party and as such plaintiff is not entitled to relief, as prayed for.
24. In this regard reliance is placed upon the judgment of Hon'ble Andhra Pradesh High Court in Jonnala Sura Reddy and another vs. Tityyagura Srinivasa Reddy and others, AIR 2004 Andhra Pradesh 222, wherein the Court has held as under:-
"7. Since there is not even a whisper about the plaintiff filing a suit earlier, in the plaint in this case, it is clear that plaintiff did not come to the Court with clean hands. It is well known that injunction which is an equitable relief would not be granted to a person who does not come to the Court with clean hands, and who is guilty of suppression of facts.
8. The facts in Satishkhosla v. Elililly Ranbaxy Ltd. and Anr., (1998) CLT 1 (DB), are exactly similar to the facts in this case. In that case also plaintiff filed a second suit for injunction when in the earlier suit filed by it no interim injunction was granted. A Division Bench of Delhi High Court held that, filing of a second suit without making reference to the earlier suit, amounts to playing fraud ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 19 to gain advantage and is but an attempt to overreach the Court.
9. Learned Counsel for the respondent relying on M/s.Vizag Medical Stores, .
Visakhapatnam v. M/s.Bharat Heavy Plates & Vessels Ltd., Visakhapatnam, 2002(1) AnWR 350(AP): 2002, AIHC 1552, contends that this suit is maintainable. I am not able to agree with the said contention. In that case an application seeking to withdraw the suit with permission to file fresh suit was filed. Permission to withdraw the suit was given but permission to file a fresh suit was refused by the trial Court. When that order was challenged before this Court, a learned Single Judge held that application under Rule 1 of Order 23 cannot be dissected into two separate individual portions and a relief of permission to withdraw the suit without granting relief to file a fresh suit cannot be granted. The question whether a second suit can be filed without obtaining the leave of Court while seeking permission to withdraw the earlier suit was not considered in that case.
25. The Hon'ble Apex Court in Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gawalior and Others, AIR 1987 SC 88, has held as under:-
"4. The main contention urged before this Court by the learned counsel for the petitioner is that the High Court was in error in rejecting the writ petition out of which this case arises, on the ground that the petitioner had withdrawn the earlier writ petition in which he had questioned the order passed by the Tribunal on 4.10.1985 without the permission of the High Court to file a fresh petition. It is urged by the learned counsel that since the High Court had not decided the earlier petition on merits but only had permitted the petitioner to withdraw the petition, the withdrawal of the said earlier petition ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 20 could not have been treated as a bar to the subsequent writ petition.
5. In this case we are called upon to consider the effect of the withdrawal of the writ .
petition filed under Articles 226/227 of the Constitution of India without the permission of the High Court to file a fresh petition. The provisions of the Code of Civil Procedure. 1908 (hereinafter referred to as 'the Code') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal. Prior to its amendment by Act 104 of 1976, rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a suit, namely, (i) absolute withdrawal, and
(ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal was governed by sub-rule (1) thereof, as it stood then, which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants 'withdraw' his suit or abandon a part of his claim. The second category was governed by sub-rule (2) thereof which provided that where the Court was satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. Sub-
rule (3) of the former rule 1 of order XXIII of the Code provided that where the plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in sub-rule (2) he would be liable to such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Since it was considered that the use of the word 'withdrawal' in relation to ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 21 both the categories of withdrawals led to confusion, the rule was amended to avoid such confusion. The relevant part of rule 1 of Order XXIII of the Code now reads thus:-
.
"Rule 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:
**** **** **** (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, r 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."
6. It may be noted that while in sub-rule (1) of the former Rule 1 of Order XXIII of the Code the words 'withdraw his suit' had been used in sub-rule (1) of the new Rule 1 of Order XXIII of the Code, the words 'abandon his suit' are used. The new sub- rule (1) is applicable to a case where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 22 suit or such part of the claim. In the new sub-rule (3) which corresponds to the former sub-rule (2) practically no change is made and under that sub-rule the Court is empowered to grant subject to the .
conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub-rule (4) of the new Rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he would be liable for such costs as the Court might award and would also be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 23 judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a .
former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.
8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v.
::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 24State of U.P., (1962) SCR 574: (AIR 1961 SC 1457) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution because in .
such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows:
"If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 25 relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the .
same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open."
26. Hon'ble Apex Court in aforesaid judgment has held that rule of res judicata applies to a case where the suit or any issue has already been heard and finally decided by the Court, but in the case of abandonment and withdrawal of a suit without the permission of a Court to file fresh suit, second suit will not lie as the first suit is withdrawn without permission referred to in sub rule 3 of Rule 1 of Order 23 of the Code of Civil Procedure. In the aforesaid case, Hon'ble Apex Court has gone one step ahead while holding that principle underlying rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as it would also discourage the litigant from indulging in bench-hunting tactics. Hon'ble Apex Court while holding above has further concluded that withdrawal of writ petition filed in a High ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 26 Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not .
amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.
27. Though, in the case at hand, learned first appellate Court conquered with findings returned by learned trial Court with regard to plea of adverse possession taken by the defendant, but, held that there is no sufficient evidence on record to prove the alternative plea of tenancy taken by the defendant. As has been taken note above, documentary evidence adduced on record by both the parties clearly proves on record that appellants-defendants have been recorded as "Gair Maurusi Tenant". DW-1 in his statement categorically stated that he had been paying rent till 1963-
64. Plaintiff in her cross-examination categorically stated that defendant gave beatings to her when she demanded the rent from him qua the suit land, meaning thereby that the defendants were in possession of the suit land and they had also been paying rent. Otherwise, perusal of documentary evidence suggests that defendant being a "Gair Maurusi Tenant" had been paying rent regularly. It is also well settled that once the tenant is always tenant and there is presumption of continuity unless and until he or she is ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 27 ejected from the suit land. It is admitted case of the plaintiff that she had put defendant into possession and thereafter he had been continuously cultivating the suit land till 1982 .
when he allegedly gave possession to plaintiff. But, in the case at hand, this Court was unable to lay its hand to any evidence led on record by the plaintiff suggestive of the fact that the defendant handed over possession of the suit land to plaintiff in the year 1982. Rather, this Court after having perused subsequent stand taken by the plaintiff by introducing PW-2 Partapa, has no hesitation to conclude that possession of the suit land remained always with defendant and plaintiff never came into possession of the suit land in the year 1982, as alleged by her. Plaintiff made an endeavour to prove on record by leading evidence in shape of PW-1, PW-2 and PW-3 that after the year 1982, when defendant allegedly handed over the possession to plaintiff, she further gave the suit land to defendant, but there is no evidence available on record to prove aforesaid fact which is/was otherwise not pleaded in the pleadings. Otherwise also, perusal of statements having been made by PW-1, PW-2 and PW-3 suggest that possession of the suit land was subsequently taken forcibly by the defendant.
28. This Court, after having perused pleadings adduced on record by the plaintiff in previous suit juxtaposing the same with pleadings adduced in the instant ::: Downloaded on - 23/11/2017 23:04:17 :::HCHP 28 suit, is persuaded to conclude that findings returned by the learned trial Court below that suit of the plaintiff is barred by Section 12 and Order 23 Rule 1(4) CPC is correct in law and .
as such same deserves to be upheld.
29. Similarly, this Court finds that learned first appellate Court has erred in appreciating the evidence in its right perspective and there is total misreading, mis-
interpretation and misconstruction of evidence made available on record by respective parties, as a result of which erroneous findings have come on record, which are not sustainable in the eye of law and as such same deserve to be rectified in accordance with law. All the substantial questions of law are answered accordingly.
30. Consequently, in view of detailed discussion made hereinabove, this Court sees valid reason to interfere in the judgment passed by first appellate Court, which is apparently not based upon the proper appreciation of evidence as well as law. Accordingly judgment passed by learned first appellate Court is set aside and that of the learned trial Court is restored. This appeal is allowed. There shall be no order as to costs. Interim order, if any, stands vacated. All miscellaneous applications are disposed of.
November 17, 2017 (Sandeep Sharma)
(aks) Judge
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