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IN THE HIGH COURT OF BOMBAY
Dixit Y.V. and Vyas D.V. , JJ.
Appellants: Yeshwant Govardhan
Versus
Respondent: Totaram Avasu and Ors.
A.F.A.D. No. 1155 of 1954
Decided On: 20.02.1957
Counsels:
For Appellant/Petitioner/Plaintiff: R.B. Kotwal, Adv.
For Respondents/Defendant: V.B. Patwardhan, Adv.
WITHDRAWAL OF SUIT - ORDER XXIII, RULE 1, C.P.C. - WITHDRAWAL OF WITHDRAWAL - LOCUS PAENITENTIAE - A plaintiff can withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by an order of the Court.
Fact of the Case:
The plaintiff filed a suit to recover rent from the defendants under a lease agreement. During the pendency of the suit, the Bombay Tenancy and Agricultural Lands Act, 1948 came into operation, and the third defendant applied to the Mamlatdar, claiming that the surrender of the lease was not valid. The Mamlatdar granted the application and restored possession to the third defendant. The third defendant then applied for fixing reasonable rent, which was fixed by the Mamlatdar and the Collector. The plaintiff filed a purshis stating that the third defendant had given up all his contentions under the Tenancy Act and that the reasonable rent was Rs. 1,100. The plaintiff later filed an application to withdraw the suit against the third defendant, but the Court rejected the application.
Finding of the Court:
The Court held that the plaintiff was entitled to withdraw his application for withdrawal of his suit, as the withdrawal had not become effective by an order of the Court. The Court also held that the plaintiff was entitled to recover rent from the third defendant for the years 1948-49 and 1949-50, as well as the amount of assessment paid by the plaintiff.
Issues: 1. Whether a plaintiff can withdraw his application for withdrawal of his suit before an order has been made upon it? 2. Whether the plaintiff is entitled to recover rent from the third defendant for the years 1948-49 and 1949-50, as well as the amount of assessment paid by the plaintiff?
Ratio Decidendi: 1. The Court held that a plaintiff can withdraw his application for withdrawal of his suit before an order has been made upon it, as the withdrawal has not become effective until then. The Court relied on the provisions of Order XXIII, Rule 1 of the Code of Civil Procedure, which allows a plaintiff to withdraw his suit or abandon part of his claim at any time after the institution of the suit. 2. The Court held that the plaintiff was entitled to recover rent from the third defendant for the years 1948-49 and 1949-50, as well as the amount of assessment paid by the plaintiff, as the third defendant had agreed to pay a reasonable rent of Rs. 1,100 per year, and the amount of assessment paid by the plaintiff was not in dispute.
Final Decision: The appeal was partly allowed. The decree passed by the lower appellate Court as well as by the trial Court was modified, and a decree was passed in favor of the plaintiff for a sum of Rs. 1,722-8-0 to be recovered from the third defendant with interest at 4 percent per annum from the date of the suit to the date of payment. The decree passed against defendants Nos. 1 and 2 was maintained.
Dixit,J.
1. This appeal arises from a suit filed by the plaintiff-appellant to recover from the defendants-respondents a sum of Rs. 2,884-14-0 on account of a lease. The lease was executed under the following circumstances. The lands which are the subject-matter of the lease are three fields bearing survey Nos. 28/1, 30 and 31. These lands are of the ownership of the plaintiff. On 8th February 1946 the plaintiff granted a lease to the defendants for a period of five years at a rent of Rs. 1,100 per year. On 11th April 1946, the Bombay Tenancy Act, 1939, was made applicable to the locality in which the lands are situate. As a result of the operation of Section 23 the lease, though limited to a pe- riod of five years, became a lease for a period of ten years. On 24th January 1947, the defendants surrendered the three lands and possession was given to the plaintiff. An endorsement was made to that effect upon the lease. In 1947-48 the plaintiff cultivated these lands. In 1948, however, the Bombay Tenancy and Agricultural Lands Act, 1948, came into operation and then the third defendant applied to the Mamlatdar, claiming that the surrender was not valid. On 30th April 1948 the application was granted and possession was restored to defendant No. 3. Defendant No. 3 then applied to the Mamlatdar for fixing reasonable rent and the Mamlatdar fixed the reasonable rent at Rs. 600 per year. This order was taken in appeal and the Collector fixed the reasonable rent at Rs. 758 per year. It is not clear from the record as to when the Mamlatdar and the Collector made the respective orders, but the appellate judgment shows that the Mamlatdar made the order before the present suit was filed and that the Collector made the appellate order after the suit was decided by the trial Court. The suit was filed on the 9th March 1951 and the suit ended in a decree on the 13th September 1952.
2. While the suit was pending, two purshises were filed. Exhibit 30 was a purshis filed on behalf of the third defendant and the purshis stated that the third defendant had given up all his contentions and that the reasonable rent of the suit lands was a sum of Rs. 1,100, independently of the amount of assessment. The purshis went on to say that the third defendant had given up all his proper contentions under the Tenancy Act. This purshis was filed on the 19th March 1952 and on the same day the plaintiff filed a purshis which, after referring to the giving up of all the contentions by defendant No. 3 and about the third defendant having admitted a sum of Rs. 1,100 being the amount of the reasonable rent, went on to say that the plaintiff wanted to withdraw the suit as against defendant No. 3. Upon these two purshises, the Court did not make any specific order, but a reference to the purshises, which are Exs. 30 and 31 in the case, shows that they were filed before the learned Judge.
3. On 17th June 1952 the plaintiff filed an application, asking that the name of the third defendant should not be deleted from the suit and that the suit should proceed as against him. It may be pointed out that after the two purshises, Exs. 30 and 31, were filed, the learned Judge re-cast the issues and that was on the 19th March 1952. The learned Judge considered the application of the 17th June 1952 and rejected it on the ground that the application was not maintainable and also on the ground that the application was not supportable on merits. The trial Court then proceeded to pass a decree in favour of the plaintiff against defendants Nos. 1 and 2 for a sum of Rs. 103-10-0 with proportionate costs of the suit.
4. From the decree made in the suit, the plaintiff went in appeal before the District Court, East Khandesh, at Jalgaon, and the learned District Judge confirmed the decree of the trial Court. From the appellate decree the plaintiff has come up in second appeal and the contention taken on behalf of the appellant is that the Courts below were wrong in not permitting the plai
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