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IN THE HIGH COURT OF ALLAHABAD
K. N. GOYAL, K. N. MISRA
BHARAT - Appellant
Versus
RAM PRATAP - Respondents
S. C. A. 418 Of 1972
Decided On : 05/02/1984
WITHDRAWAL OF SUIT - O. 23 R. 1 (2) C. P. C. - APPLICATION FOR WITHDRAWAL OF SUIT WITH LIBERTY TO FILE FRESH SUIT - INTERPRETATION - COURT'S JURISDICTION - EFFECT OF ORDER ALLOWING APPLICATION - CONSTRUCTION OF ORDER - INTENTION OF JUDGE - OPERATIVE PART OF ORDER - REJECTION OF PRAYER FOR PERMISSION TO FILE FRESH SUIT - NECESSITY FOR EXPRESS ORDER - SPLITTING UP OF PRAYER - APPLICATION UNDER O. 23 R. 1 (1) C. P. C. - DISTINCTION - RES JUDICATA - APPLICABILITY.
Fact of the Case:
Plaintiff filed a suit for declaration and moved an application under O. 23 R. 1 (2) C. P. C. (old) for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The application was allowed by the court. Subsequently, the plaintiff filed the present suit. The defendants contended that the suit was barred by the principle of res judicata. The trial court decreed the suit, but the lower appellate court dismissed it as barred under O. 23 R. 1 (3) of the Code (old).
Finding of the Court:
The court held that an application under O. 23 R. 1 (2) of the Code for permission to withdraw the suit with liberty to institute a fresh suit on the same subject matter must be treated as an indivisible whole, and if a party is not allowed liberty to institute a fresh suit, his pending suit should not be dismissed, but the application should refused altogether and the suit should be retained on the file. The court further held that the order allowing the application without expressly granting or refusing permission to institute a fresh suit is to be taken to have been passed granting the composite prayer made in the application under O. 23 R. 1 (2) of the Code, under which an order either allowing the application in toto or rejecting it in toto, could alone be legally passed by the Court.
Issues: 1. Whether an application moved by the plaintiff under O. 23 R. 1 (2) of the Code (old) for permission to institute a fresh suit on the same subject matter must be treated as an indivisible whole for the prayer contained therein can be split up while refusing to grant permission to institute a fresh suit and whether the court can consign the suit having been withdrawn? 2. Whether the order dated 28-9-1967 passed in earlier suit on the application of withdrawal of suit with liberty to file fresh suit can be construed to have been passed under sub-cl. (1) of R. 1 of O. 23 of the Code when the application was in fact not moved under said provision, but it was moved under sub-cl. (2) of R. 1 of O. 23 of the Code and, therefore, the same could not be treated by the Court under sub-cl. (1) of R. 1 of O. 23 of the Code by splitting up the prayer or rejecting the prayer seeking liberty to file fresh suit? 3. Whether the suit is barred by the principle of res judicata?
Ratio Decidendi: 1. An application under O. 23 R. 1 (2) of the Code for permission to withdraw the suit with liberty to institute a fresh suit on the same subject matter has got to be treated as an indivisible whole and the court cannot split up the prayer while refusing permission to institute a fresh suit and that it could not treat the application to be one under O. 23 R. 1 (1) of the Code (old) for withdrawal of the suit simpliciter and, as such, the order allowing the application without expressly granting or refusing permission to institute a fresh suit is to be taken to have been passed granting the composite prayer made in the application under O. 23 R. 1 (2) of the Code, under which an order either allowing the application in toto or rejecting it in toto, could alone be legally passed by the Court. 2. The order dated 28-9-1967 passed in earlier suit on the application of withdrawal of suit with liberty to file fresh suit cannot be construed to have been passed under sub-cl. (1) of R. 1 of O. 23 of the Code when the application was in fact not moved under said provision, but it was moved under sub-cl. (2) of R. 1 of O. 23 of the Code and, therefore, the same could not be treated by the Court under sub-cl. (1) of R. 1 of O. 23 of the Code by splitting up the prayer or rejecting the prayer seeking liberty to file fresh suit. 3. The suit is not barred by the principle of res judicata.
Final Decision: The appeal was allowed, the judgment and decree dated 7-9-1972 passed by the lower appellate court was set aside, and the judgment and decree passed by the trial court was restored.
( 1 ) THIS appeal was heard by one of us brother K. N. Goyal, J. who after noticing that there was some conflict in the decisions of single Judges on the legal question involved in this appeal referred this second appeal to be decided by the Division Bench. This appeal has, thus, come up before us for decision.
( 2 ) BRIEFLY stated the facts of the case are that the plaintiff-appellant had filed a suit No. 239 of 1964 for declaration against the defendant-respondents and in that suit an application under O. 23 R. 1 (2) Civil P C (for short C. P. C.) (as it stood prior to its amendment) for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action was moved. This application was allowed by order dated 28-9-1967 passed by Munsif, North Sultanpur. The operative portion of the order reads: -"the application is therefore allowed while permitting the plaintiff to withdraw the suit. The plaintiff will pay up the entire cost of this suit to the defendant. "
( 3 ) THEREAFTER, the plaintiff filed the present suit. The plaintiffs contention was that as a result a partition between the zamindars of village Rohitpara land of Ahata No. 29 and Ahata No. 25 was Sehan of plaintiff and Bhulan, father of defendant 1, who were members of the same family. As a result of private partition between plaintiff and Bhulan, 10 Biswas of land of Ahata No. 25, situated towards north, fell in the share of Bhulan and 1 Bigha land of the said plot situate towards south, fell in the share of the plaintiff. After separation, plaintiff constructed a Sariya in his portion of land in Ahata No. 25 and Bhulan constructed a Sariya on his portion of land. And ever since then, the plaintiff continued to remain the exclusive possession over his portion of land and his Sariya and the defendant continued to be in possession of the land and Sariya which fell in his possession. The plaintiff, thus, pleaded that he has all along been in exclusive possession of his Sariya and the land appurtenant to it. Defendant 1 executed a sale deed dated 27-10-1964 transferring his portion of land of Ahata to defendant 2. Defendant 2, however, threatened to interfere with the possession of the plaintiff over his portion of land of Ahata marked by letters "na" "ka" "sa" and "da" in the site plan annexed to the plaint. The plaintiff, thus, pleaded for the relief of permanent injunction restraining the defendants from interfering with his possession over the disputed Sariya and the appurtenant land.
( 4 ) THIS suit was contested by both the defendants who filed separate written statement. Their defence proceeded on common grounds that the property in suit does not belong to the plaintiff nor he is in possession over the same. They denied the alleged division of Ahata No. 25 and the construction of Sariya in dispute by the plaintiff. It was also denied that the disputed Sariya is situated on plot No. 25. It was further pleaded that defendant 1 was in possession of the Sariya in suit and he validly transferred it to defendant 2 by means of sale deed dated 27-10-1964. The defendants also pleaded that the plaintiff had earlier filed a suit in respect of this very property, but he had withdrawn that suit and no permission was granted to file fresh suit, and, as such, the suit is barred by principle of res judicata. The following issues were framed in the suit on the pleadings of the parties: - (1) Whether the plaintiff is owner of disputed property? (2) Whether plaintiffs is in possession. If not its effect? (3) Whether suit is barred by principle of res judicata? (4) Whether the land in suit and property in suit is not identifiable? (5) Relief?
( 5 ) ON the consideration of the evidence on record let in by the parties, the trial court decreed the suit of the plaintiff holding that the plaintiff is owner of the property in suit, that the suit is not barred by principle of res judicata and that the property in suit is identifiable on the spot. Aggr
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