IMPORTANT POINT
Withdrawal of suit without permission to file fresh suit does not constitute a decree and will not preclude the party from raising the plea in defence in subsequent instituted suit by other party.

Headnote:Civil Procedure Code, 1908 — Order 23 Rule 1(4)(b) — Withdrawal of suit without permission to institute fresh suit — Such order allowing withdrawal cannot constitute a decree and could not debar the party from taking the defence in second round of litigation instituted by second party — Respondent-plaintiff filed title suit with injunction claiming that suit property was purchased by regd. sale deed dated 26-2-1973 — Appellant-defendant claimed to have purchased suit property in 1971 — Appellant-defendant had earlier filed title suit in 1973 and that suit was decreed by 1st appellate Court — Suit was withdrawn without liberty to file fresh suit in second appeal — High Court found that appellant defendant having withdrawn their earlier suit were precluded from raising plea in defence that sale deed executed in favour of plaintiff respondent on 26-2-1973 was not true and valid — Appellant was not precluded from raising the plea that sale deed dated 26-2-73 was not true and valid — Impugned judgment was liable to be set aside.
       Held : By the impugned judgment it has been held that since the petitioners herein had withdrawn Suit No. 298 of 1973 and since no liberty was given to the petitioners to institute a fresh suit, the petitioners were precluded from raising the plea in defence that sale deed executed by Chelliah Nadar in favour of Thangaraj Nadar dated 26.2.1973 was not true and valid. In this connection, the Madras High Court placed reliance on Order XXIII Rule 1(4) of Code. (Para 13)
       The question before us is : what is the effect of order passed by the High Court in Second Appeal No. 8 of 1977 filed by Thangaraj Nadar, in the first round of litigation. That order is dated 27.7.78. Under that order, the Madras High Court granted leave to withdraw the suit filed by the petitioners herein bearing Suit No.298 of 1973, making it clear that the petitioners herein (plaintiffs in earlier suit) were not given liberty to file a fresh suit. Does it mean that petitioners-defendants were estopped from raising the defence regarding validity of the conveyance in their favour by Chelliah Nadar dated 8.10.71. (Para 14)
       In view of the above judgments, the position in law is clear that when the court allows the suit to be withdrawn without liberty to file a fresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the petitioners herein from taking the defence in the second round of litigation as held in the impugned judgment. The above judgments indicate that if the plaintiff withdraws the suit, the order of the court allowing such withdrawal does not constitute a decree under Section 2(2) of Code. That in any event, it will not preclude the petitioners herein (defendants in second round) from raising the plea that the sale deed executed by Chelliah Nadar on 26.2.73 in favour of Thangaraj Nadar was not true and valid. Thus, the civil appeal needs to be allowed. (Para 19)

JUDGMENT

Dr. Arijit Pasayat, J. — Challenge in this Appeal is to the judgment rendered by a learned Single Judge of the Madras High Court allowing the second appeal filed by the respondents under Section 100 of the Code of Civil Procedure, 1908 (in short the ‘Code’). Respondents are the legal representatives of the original plaintiff.

2. According to the plaintiff, the suit properties originally belonged to one Chelliah Nadar, he had purchased the suit properties under sale deed Ex.A1 dated 26.2.1973, the defendants 1 to 3 fraudulently created a conveyance deed in their favour the defendants had earlier instituted O.S. No. 298 of 1973 on the file of the District Munsif Court, Srivaikuntam, the defendants obtained orders of injunction and managed to enter into the suit properties; the defendants have no right whatsoever, the suit O.S. No. 298 of 1973 was dismissed after contest, in appeal , the first appellate Court decreed the suit in favour of the plaintiffs in the said suit, present plaintiff preferred Second Appeal, No. 8 of 1977, pending the said Second Appeal, said suit was permitted to be withdrawn i.e. suit O.S. No.298 of 1973 but without liberty to file a fresh suit on the same cause of action, the defendants have no right in the suit property and the defendants who have no right are in enjoyment of the suit properties since 11.6.1973.

3. It was the further case of the plaintiffs that the defendants have cut and carried away the Odai trees worth Rs.1500/- the defendants have been tapping toddy from 42 palmyra trees since 1973 standing on the suit properties; the defendants have also cut and carried away two palmyra trees worth Rs. 200/-, the defendants have been cultivating ground nut and derived income of Rs. 1000/-, the palmyra trees would fetch an income of Rs. 400/- per annum; the defendants 1 and 3 are liable to pay Rs. 5100/- towards past mense profits and the plaintiffs are entitled for recovery of possession besides past and future mense profits from the defendants.

4. The defendants 1 and 3 filed a written statement inter alia pleading that the suit properties originally belonged to Chelliah Nadar and his brother; the defendants have purchased the properties from Chelliah Nadar on 8.10.1971, the plaintiff herein attempted to interfere with the defendants’ possession, the plaintiff had not purchased the suit property from Chelliah Nadar, on the dismissal of the said suit the defendants herein preferred A.S. No. 51 of 1975 which was allowed and decreed; the Second Appeal preferred by the plaintiff herein was pending, pending the Second Appeal, the defendants herein withdrew the suit itself as they have not proved execution of the sale deed by Chelliah Nadar, the plaintiff has no right to institute this suit, the plaintiff is not entitled to the suit property, the plaintiff is not entitled to any income or value of the trees or income from palmyra trees and that the suit is liable to be dismissed.

5. After contest, the trial Court held that the plaintiff in the present suit is entitled to the suit property and the plaintiff is entitled to recover possession, the defendants 1 and 3 are liable to pay Rs. 2,760/- towards past mense profits and the plaintiff is entitled to future mense profits to be ascertained under Order 20 Rule 12 of the Code.

6. The first appellate court held that the defendant Nos. 4 to 5 have not been impleaded as parties to the first appeal. According to the plaintiff he had purchased the suit property from Chelliah Nadar under Exhibit A1 on 26.2.1973. The contesting defendants also purchased the suit property from brothers of Chelliah Nadar under Exhibit B-7 on 8.10.1971 and claimed to be in possession of the property. In the earlier suit O.S. No. 298 of 1973 the orders passed have great relevance and reads as follows :

“After some lengthy arguments, Mr. K. Sarvabhauman learned counsel for the respondents prayed for leave to withdraw the suit. Mr. Ganapathi Subramaniam, learned co

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2007 Supreme(SC) 516

IMPORTANT POINTWithdrawal of suit without permission to file fresh suit does not constitute a decree and will not preclude the party from raising the plea in defence in subsequent instituted suit by other party.

IMPORTANT POINT
Withdrawal of suit without permission to file fresh suit does not constitute a decree and will not preclude the party from raising the plea in defence in subsequent instituted suit by other party.