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SUPREME COURT OF INDIA
R.K. Agrawal, Abhay Manohar Sapre, JJ.
Anil Kumar Singh – Appellants
Versus
Vijay Pal Singh & Ors. – Respondents
Civil Appeal No. 20007 Of 2017 (Arising Out of SLP (C) No.16749 of 2010)
Decided On : 30-11-2017
(a) Code of Civil Procedure, 1908 – Order XXIII Rule 1 – Trial court permitting appellant to withdraw suit under sub-rule (4)(a) – Appellant not entitled to file fresh suit – Defendant not entitled to raise any objection except praying for payment of cost to him – Defendant has no right to compel petitioner to prosecute the suit. (Para 23, 24, 25)
(b) Constitution of India – Article 226 – Writ filed challenging permission to appellant to withdraw suit – High Court should have confined its enquiry to legality of the impugned order – Committed jurisdictional error by travelling beyond going into issues relating to grant of injunction and directing appellant to put respondent into possession of suit land, grant of injunction not being subject matter of the writ petition. (Para 29, 30, 31)
Facts of the case:
The suit land originally belonged to one Shri Jinta s/o Dhamma. By subsequent transfers the appellant became the owner of the suit land to the extent of ¾th and remaining ¼th fell to the share of Ajit Pratap Singh.
In May 2006, the appellant (plaintiff) filed a suit claiming permanent injunction restraining respondent No. 1 from interfering in his possession over the portion of the suit land. The appellant also applied for grant of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 against respondent No. 1 from interfering in his possession over the portion of the suit land which he claimed to have purchased.
On 31.05.2006, the Trial Court granted ex-parte temporary injunction restraining respondent No.1 from interfering in appellant's possession over the portion of the suit land as claimed and issued notice of the suit and the application made for grant of temporary injunction to respondent No.1
In the meantime, parties entered into a compromise wherein respondent No.1 agreed not to interfere in appellant's possession. The appellant accordingly filed an application under Order XXIII Rule 1 to withdraw the suit. Respondent No.1 opposed the application.
The Trial Court allowed the application and permitted the appellant to withdraw the suit subject to payment of cost of Rs. 350/- payable to respondent No.1 (defendant No.1). The appellant's suit was accordingly dismissed as withdrawn.
Respondent No.1 filed revision under Section 115 of the Code which was dismissed.
Respondent No.1 filed writ petition which was and the orders of Additional District Judge and the Trial Court were set aside and the appellant (plaintiff) was directed to place respondent No.1 (defendant No.1) in possession of the suit land.
Finding of the Court:
High Court committed a jurisdictional error.
Result: Appeal allowed.
JUDGMENT
Abhay Manohar Sapre, J.
Leave granted.
2. This appeal is filed by the plaintiff against the final judgment and order dated 28.05.2010 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 5453(M/S) of 2008 whereby the High Court allowed the petition filed by respondent No.1 herein and set aside the order dated 14.08.2007 passed by the Additional Civil Judge (Jr. Division) I, Hardoi in R.S. No.271 of 2006 and order dated 05.08.2008 passed by the Additional District Judge-III, Hardoi in C.R. No.63 of 2007.
3. In order to appreciate the issues arising in the case, it is necessary to set out the facts infra. The facts set out hereinbelow are taken from the SLP paper book.
4. The appellant is the plaintiff whereas respondent Nos.1 to 4 are defendant Nos.1 to 4 and respondent No.5 is plaintiff No.2 as proforma respondent.
5. The dispute in this case is essentially between the appellant and respondent Nos.1 to 4 and relates to a land bearing number 629-A/0.0320 Hect. and 629-B/1.5820 hect. situated in village - Asyoli Pargana, Bangar, Tehsil and District Hardoi (UP) (hereinafter referred to as "suit land").
6. The suit land claimed to be originally belonged to one Shri Jinta s/o Dhamma. He sold it to two persons - Abhishek Singh and Ajit Pratap Singh. Abhishek Singh then claimed to have sold his half share to the appellant on 25.02.2003 whereas Ajit Pratap Singh had already sold his half share to one Khanulal Mishra on 15.11.2000. Khanulal then claimed to have sold his ¼th share out of his share to the appellant and remaining half share to Ajit Pratap Singh on 04.06.2003. In this way, the appellant claimed to become the owner of the suit land to the extent of ¾th and remaining ¼th fell to the share of Ajit Pratap Singh. The mutation of the names of the owners of the suit land on their respective shares was accordingly claimed to have been done.
7. The appellant claimed to be doing business of making brick kiln on the suit land after purchase of the suit land in partnership with respondent No.5 under the name - M/s Sushma Brick Field.
8. In May 2006, the appellant (plaintiff) filed a suit being Civil Suit No.271/2006 in the Court of First Additional Civil Judge, Hardoi and claimed permanent injunction restraining respondent No. 1 from interfering in his possession over the portion of the suit land. The appellant also applied for grant of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") against respondent No. 1 from interfering in his possession over the portion of the suit land which he claimed to have purchased.
9. On 31.05.2006, the Trial Court granted ex-parte temporary injunction restraining respondent No.1 from interfering in appellant's possession over the portion of the suit land as claimed and issued notice of the suit and the application made for grant of temporary injunction to respondent No.1. The appellant, in the meantime, also applied for police protection to ensure that order dated 31.05.2006 is not violated by respondent No.1 which was granted on 12.07.2006.
10. In the meantime, parties claimed to have entered into a compromise wherein respondent No.1 agreed not to interfere in appellant's possession. The appellant accordingly filed an application under Order XXIII Rule 1 to withdraw the suit. Respondent No.1 opposed the application. By order dated 14.08.2007, the Trial Court allowed the application and permitted the appellant to withdraw the suit subject to payment of cost of Rs. 350/- payable to respondent No.1 (defendant No.1). The appellant's suit was accordingly dismissed as withdrawn. The order reads as under:
"Case was called out. The parties are present. The object of 61 C2 has been field by the O.P. against the 56C2, let the same be included with record. Heard. The application is returned on costs of Rs. 350/- with the condition that there shall be restriction on plaintiff to bring any other
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