Back
2000(4) Supreme 236
SUPREME COURT OF INDIA
(From the Madras High Court)
A.P. Misra & D.P. Mohapatra, JJ.
K.S. Bhoopathy & Ors. -Appellants
versus
Kokila & Ors. -Respondents
Civil Appeal No. 3287 of 2000
(Arising out of SLP (C) No. 716 of 1999)
Decided on 8-5-2000
Counsel for the Parties :
For the Appellants : Y. Prabhakar, Radha Krishnan and Mrs. Revathy Raghavan, Advocates.
For the Respondents : S. Sivasubramaniam and R. Nedumaran, Advocates.
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 the plaintiff can 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 cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC. (Para 12)
The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non suit. Therefore on principle an application by a plaintiff under sub-rule 3 cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule 1. In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. (Para 13)
In the instant case on perusal of the impugned order it is clear to us that the learned judge has not considered the matter in its proper perspective while allowing the prayer of the plaintiff for permission to withdraw the suit with leave to file a fresh suit. The order is vitiated on account of non-application of mind to the relevant aspects of the matter. It appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the trial court and the first appellate court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate court they took recourse of Order XXIII Rule 1(3) CPC and filed the application for withdrawal of the suit with leave to file fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the Court to feel satisfied that there exist proper grounds/ reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at appellate or second appellate stage prejudice to defendant is writ large as he loses the benefit of the decision in his favour in the lower court. The impugned order is unsustainable. (Paras 16, 17 & 18)
Key Points: - The appellate court must apply its mind to ensure strict compliance with the conditions in Order XXIII Rule 1(3) CPC for granting leave to file a fresh suit (!) (!) (!) . - Leave can be granted only if the court is satisfied that there are sufficient grounds, such as a suit being bound to fail by a formal defect or other sufficient grounds, and not merely to avoid an adverse finding (!) (!) (!) . - The High Court's order was vitiated because it did not consider the relevant aspects, including the weakness in the claim of exclusive user and the potential prejudice to the defendants (!) (!) (!) . - Granting permission at the appellate stage may nullify the benefit of lower court decisions and can result in prejudice to the defendant, requiring careful judicial scrutiny (!) (!) (!) . - The plaintiffs attempted to circumvent an unfavorable appellate finding by using the withdrawal provision, which the court found to be an erroneous approach (!) (!) .
JUDGMENT
D.P. Mohapatra, J.-Leave granted.
2. This appeal filed by the defendants is directed against the judgment/order of the Madras High Court in Second Appeal No. 807 of 1996 and CMP Nos. 7569/96 and 1085/96, along with the application filed by the respondents 1 & 2 under Order XXIII Rule 1(3) Civil Procedure Code (CPC for short) seeking permission of the Court to withdraw the suit with leave to file a fresh suit.
3. The factual matrix of the case relevant for appreciation of the questions raised in the appeal may be stated thus Respondents 1 & 2 herein filed O.S. No. 197/89 (subsequently re-numbered as 614/89) in the Court of the District Munsif, Erode arraying the appellants and respondents 3 & 4 as defendants in the suit. In the said suit the plaintiffs sought relief inter alia, of injunction against defendants 1 & 2 restraining them from establishing and running a flour mill on their property and for further injunction restraining them from disturbing the plaintiffs exclusive user of the pathway lying between the properties of the plaintiffs on one side and defendants 1 & 2 on the other. Defendants 1 & 2 in the suit as owners sold portions of their land by separate sale deeds dated 10.8.78 executed in favour of plaintiffs 1 & 2 which were shown in the map attached to the plaint in blue and green colours respectively. The pathway is similarly shown in red colour in the map. It was the case of the plaintiffs that establishment of the proposed flour mill by the defendants 1 & 2 will not act as a nuisance and will seriously prejudice the plaintiffs user of their property on which they have constructed a clinic. Regarding the pathway the case of the plaintiffs is that they have exclusive right of user of the same and the plaintiffs should not be permitted to interfere with their right in any manner.
4. The defendants 1 & 2 refuted the claims of the plaintiffs in respect of both the prayers and contended that the proposed flour mill will in no way act as a nuisance against user of the property by the plaintiffs and that the plaintiffs have no exclusive right of user of the pathway which is a common pathway meant to be used by both the parties.
5. The trial court decreed the suit holding inter alia that the plaintiffs have an exclusive right of user over the pathway. The trial court also accepted the case of the plaintiffs in respect of the prayer for injuncting contesting defendants from establishing a flour mill on their property.
6. On appeal by defendants 1 & 2 the first appellate court modified the decree relating to the pathway holding that the plaintiffs have no exclusive right of user of the pathway and all the parties are entitled to use the same as it is a common path way.
7. Being aggrieved by the modification of the decree to the extent noted above the plaintiffs filed the second appeal, S.A. No. 807/96, before the High Court of Madras. Before the said appeal was admitted the appellants filed an application under Order XXIII rule 1(3) CPC seeking permission of the Court to withdraw the suit with leave to file a fresh suit. It was averred in the application, inter alia, that no prayer for declaration of plaintiffs title over the pathway was made in the plaint and in view of the cloud raised against their exclusive title and right of user in the judgment of the lower appellate court it was necessary to withdraw the suit and file a fresh suit properly constituted and seeking appropriate relief. The contesting defendants objected to the prayer in the application on the ground, inter alia, that it a move by the plaintiffs to get over the finding that they have no exclusive right of user over the suit pathway and that the defendants have also a right of user of the same since it is a common pathway meant to be used by the parties. According to the defendants in the circumstances the permission sought for withdrawal of the suit with leave to file a fresh suit according to the defendants could not be granted. The application
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
