Civil Revision Application No.503 of 2000

14th June, 2002

Petitioner Counsel: Shri. C. R. DALVI, S. M. GORWADKAR
Respondent Counsel: Shri. A. A. KUMBHAKONI

Cases Cited:
Tukaram Mahadu Tandel Vs. Ramchandra Mahadu Tandel, AIR 1925 Bombay 425 [Para 4]
The Executive Officer, Ardhanareswar Temple Vs. R. Sathyamoorthy, AIR 1999 SC 958 [Para 4]
K. S. Bhoopathy Vs. Kokila, (2000) 5 SCC 458 [Para 4]
Kedar Nath Vs. Chandra Karan, AIR 1962 All 263 [Para 6]
V. Dube Vs. Harcharan, AIR 1971 All 41 [Para 6]
Jubedan Begum Vs. Sekhawat Ali Khan, AIR 1984 Punj. & Har. 221 [Para 6]
Ram Dhan Vs. Jagat Prasad, AIR 1982 Raj 235 [Para 6]

JUDGMENT

JUDGMENT :- Heard the learned Advocates for the parties. Perused the records.

2. The petitioners challenge the order dated 21st January, 2000, passed by the trial Court in Civil Suit No.250/1999, allowing the respondent to withdraw the suit. The challenge is mainly three folds, firstly, that the withdrawal of the suit has been allowed ignoring the advantage gained by the respondent during the pendency of the proceedings in relation to the subject matter of the suit by virture of the order of the Court; secondly, by ignoring the fact that there was already a finding arrived at by the same Court regarding the possession of suit premises with the petitioners and the same was in favour of the petitioners and the matter regarding adjudication of the said finding was pending at the appellate Court; and thirdly, on the ground that the impugned order is a non-speaking order.

3. The facts, relevant for the decision are that the premises in question undisputedly belong to M/s. Mahadkar Construction Private Limited. It is the case of the petitioners that they were allowed to run business therein and consequently had established restaurant which was allowed to be conducted by the respondent under the agreement dated 5th October 1992. Since the respondent failed to comply with the terms and conditions of the agreement regarding payment of compensation, the petitioners terminated the agreement on 8th April, 1999. Pursuant thereto, the respondent filed R.C.S.No.250/1999 in the Small Causes Court, Pune for injunction and obtained ex-parte order of status-quo on 12th April, 1999. After hearing the parties, the order of status-quo was vacated and the application for temporary injunction filed by the respondent was dismissed by the trial Court on 26th April, 1999, holding that the petitioners were in control of the suit premises. The respondents preferred Civil Misc. Appeal No.183/1999 against the order of rejection of temporary injunction and also prayed for restoration of possession of the suit premises, as according to the respondent he was dispossessed from the suit premises on 28th April, 1999 taking undue advantage of the order dated 26th April 1999 whereby the injective relief was refused to the respondent by the trial Court, whereas it is the case of the petitioners that they were already in possession of the suit premises and the said fact stands confirmed by the order of the trial Court passed on 26th April, 1999. It is further case of the petitioners that they delivered the possession of the suit premises to the owners thereof, namely, M/s.Mahadkar Construction Pvt. Ltd. on 29th April, 1999. The Additional District Judge in Civil Misc. Appeal No.183/1999 allowed Exh.4 filed by the respondent for restoration of possession of the suit property by another order dated 10th May, 1999. It is the case of the respondent that pursuant to the said order he took the possession of the suit premises on 17th May, 1999 whereas it is the case of the petitioners that the order of 10th May 1999 was sought to be executed illegally with the help of police force without obtaining necessary order from the Court for police protection for the purpose of execution of the said order. The petitioners thereafter preferred C.R.A. No.666/1999 challenging the order dated 10th May 1999 and this Court set aside the said order and remanded the matter to the lower appellate Court with the direction to hear afresh the matter bearing in mind the terms of the agreement dated 3rd July 1988. The District Court by an order dated 12th August 1999 disposed of the Exh.4 by fresh order directing the respondent to deposit the amount of Rs.13,43,316/- within five weeks and for continuation of order of injunction subject to deposit of the said amount within the specified period. The said order was sought to be challenged by the respondent in C.R.A.No.998/1999, but without any success as the same was dismissed on 15th October, 1999. Thereafter, the petitioners filed Exh.53 Misc. Civil Appeal No.183/1999 before the District Court on 22nd November 1999, complaining of failure on the part of the respondent to comply with the order dated 12-8-1999 and consequently for direction to respondent to handover the possession of the suit premises to the petitioners. On the other hand, the respondent filed an application before the trial Court being Reg. Civil Suit NO.250/1999 seeking permission to withdraw the suit to enable him to file a fresh suit on the same cause of action as well as for the purpose of the recovery of compensation and for various other purposes. The said application was filed on 29th November 1999. The petitioners by their reply to the same objected for unconditional withdrawal and insisted for restoration of possession of the suit premises to be made condition precedent for the withdrawal of the suit. The trial Court, however, by the impugned order allowed the respondent to withdraw the suit without any condition. The order passed in that regard, reads thus:

"Looking into the Para 8, no permission is necessary. Withdrawal allowed.

Sd/-21-1-2000."

Meanwhile, on 8.12.1999, the respondent filed pursis in the District Court in Misc. Civil Appeal NO.183/1999 to the effect that he did not want to continue with the Misc. Civil Appeal as he was going to withdraw the original Civil Suit itself. The lower appellate Court by an order dated 23rd March 2002 permitted withdrawal of the Appeal. As regards Exh.53, which was filed by the petitioners in the said Misc. Civil Appeal No.183/99, the same was rejected holding that in view of unconditional withdrawal of the suit on 21-1-2000, the Appeal automatically was disposed of, that there was no mistake committed by the lower appellate court while ordering restoration of possession in favour of the respondent granting relief of mandatory injunction and that, therefore, there was no case for grant of restoration of possession to the petitioners. The said order was passed on 24th March, 2000. The petitioners challenged the said order in C.R.A.No.526/2001 which was rejected at the stage of admission by the learned Single Judge of this Court on 14th January 2002 observing that the said revision application being against the order of the appellate Court refusing the restitution on the ground that the appeal from order had become infructuous, and the issue of restitution being pending before this Court in the present C.R.A. in any case, the petitioners would be entitled for adjudication on the point of restitution even in the present petition on account of merger doctrine.

4. Placing reliance in the decision of the Division Bench of this Court in the matter of Tukaram Mahadu Tandel Vs. Ramchandra Mahadu Tandel reported in AIR 1925 Bombay 425; and of the Apex Court in The Executive Officer, Ardhanareswar Temple Vs. R. Sathyamoorthy and others reported in AIR 1999 SC 958; the learned Advocate for the petitioners submitted that taking undue advantage of the order passed by the lower appellate Court during the pendency of the proceedings, the respondent having obtained possession of the suit premises and thereafter having chosen to abandon the proceedings by withdrawing the suit, it was for the Court below while allowing to withdraw the suit to impose condition regarding restoration of possession of the suit premises. Since the record discloses that the possession of the suit premises was acquired by the respondent during the pendency of the proceedings and that too on account of the order passed by the Court below, the respondent could not have been allowed to withdraw the suit and at the same time to continue to enjoy the advantage gained by him on the basis of the order passed by the Court during the pendency of the said proceedings in the suit. Considering the fact that the trial Court had rejected the application for injunction holding that the control of the suit premises was with the petitioner, there was a favourable finding in relation to the petitioners which was sought to be disturbed by way of interim arrangement during the pendency of the appeal, which was to the advantage of the respondent and in case the respondent wanted to withdraw the suit at that stage, he should have been ordered to restore status-quo ante before withdrawing the suit. Even assuming that the right of plaintiff under Order 23, Rule 1 of C.P.C. for withdrawal of the suit be absolute, according to the Advocate for the petitioners, the matter having reached at the stage when there was a finding in favour of the petitioners, withdrawal could not have been allowed without restoring the possession of the suit premises to the petitioners as the respondent had obtained the possession of the suit premises under the guise of the execution of the order passed by the Court during the pendency of the suit. Reference is also made to the decision of the Apex Court in K.S.Bhoopathy Vs. Kokila reported in (2000) 5 SCC 458 in that regard. On the other hand, the learned Advocate for the respondent has submitted that admittedly the petitioners were not in possession of the suit premises on and from 29th April, 1999, the same having been delivered by the petitioners to the owners of the suit premises, namely, M/s. Mahadkar Construction Pvt. Ltd., who were not the parties to the suit. There was no question of gaining advantage vis-a-vis the petitioners by virtue of the order passed by the Court below during the pendency of the proceedings so as to warrant imposition of condition of restoration of possession of the suit premises in favour of the petitioner for the purpose of allowing the respondent to withdraw the suit. Drawing attention to the statement in para 8 of the Memo of the Revision Application and the order of the lower appellate Court, passed on 12th August, 1999, it was stated that document Exh.-17 filed by the petitioners before the lower appellate Court specifically discloses that the petitioners had already handed over the possession of the suit premises to their owner, namely, Mahadkar Construction Pvt. Ltd. and the possession receipt was already placed on record. It was further submitted that granting of relief in the nature prayed for in the Revision Application would virtually amount to grant illegal advantage to the petitioners when it is the case of the petitioners themselves, that they had divested themselves of the possession of the suit premises as early as on 29th April 1999. Being so, according to the learned Advocate for the respondent, there being no advantage gained by the respondent vis-a-vis the petitioners by virtue of any order passed by the Court below during the pendency of the proceedings, question of divesting the respondents of the alleged advantage by ordering the delivery of the possession of the suit premises to the petitioners does not arise at all.

5. Order 23 Rule (1) of Code of Civil Procedure, 1908, provides that any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim : Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 4 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. Sub-rule (4) provides that, where the plaintiff - (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. Apparently, therefore, when the plaintiff claims to abandon or withdraw the suit without any leave to bring fresh suit on the same cause of action, he cannot be compelled to continue with the suit, except imposition of costs and consequences which may follow from such withdrawal as regards the bar to file fresh suit on the same cause of action in respect of the same subject matter. The Apex Court in K.S.Bhoopathy's case has, in fact, held that a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without permission of the Court and in that case he is precluded from suing again on the same cause of action and neither can the plaintiff abandon a suit or part of the suit reserving himself a right to bring a fresh suit nor can the defendant insist that the plaintiff must be compelled to proceed with the suit. It has also been further observed that an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him under sub-rule (1).

6. The Apex Court in R. Satyamoorthy's case has observed that :

"It is true that in a large number of cases decided by the High Court, it was held while dealing with applications under Order, 23, Rule 1, CPC, that if an appeal was preferred by an unsuccessful plaintiff against the Judgment of the trial Court dismissing the suit and if the plaintiff appellant wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial Court in favour of the defendant would get nullified, such permission for withdrawal of the suit should not be granted."

While arriving at the above decision, the Apex Court has referred to various decisions of the High Courts including Kedar Nath Vs. Chandra Karan AIR 1962 All 263; V. Dube Vs. Harcharan AIR 1971 All 41; Jubedan Begum Vs. Sekhawat Ali Khan AIR 1984 Punj. & Har. 221; and , Ram Dhan Vs. Jagat Prasad AIR 1982 Raj 235. Considering the facts of the case before the Apex Court, it has observed that the learned Judge of the High Court felt that no favourable finding in favour of the Commissioner was being nullified by the withdrawal of the original petition at the stage of revision and therefore, the withdrawal of original petition was permissible. While appreciating the approach of the High Court to be legally correct, the Apex Court opined that certain other factors ought to have been taken into consideration by the High Court and, therefore, ruled that the most important aspect was that by the date of the Memo filed for withdrawal of the CRP and the original petition, the Commissioner had dropped the proceedings initiated against the hereditary trustees and, therefore, having obtained such an advantage from the order of remand, the hereditary trustees could not have precluded the High Court from adjudicating the matter on merits by withdrawing the CRP and the original petition. Apparently, in the case before the Apex Court, an advantage was obtained by the opposite party of the proceedings on account of a finding given by the lower authority and the same was sought to be nullified by withdrawing the CRP as well as original petition. In the matter in hand the advantage is stated to have been obtained by the respondent on account of order passed at the appellate stage but subsequent to handing over of possession of the suit premises by the Petitioners to the owners thereof. Being so, the ratio of the ruling of the Apex Court, can be of no help to the petitioners in the case in hand. Besides, the ruling of the Apex Court is to the effect that,

"if any such finding by the trial Court in favour of the defendant would get nullified such permission for withdrawal of the suit should not be granted."

The facts of the case in hand, disclose that by withdrawing the suit, no finding in favour of the Petitioners is sought to be nullified.

7. In Kedar Nath's case the High Court of Allahabad was dealing with a matter when the same was at the stage of second Appeal. In Vidyadhar Dube's case the ruling of the Allahabad High Court was to the effect that the right of the plaintiff to withdraw the suit at appellate stage, is not an absolute right and is subject to the rights acquired by the defendant under the decree. In Jubedan Begum's case the ruling of the Punjab and Haryana High Court is to the effect that, the words "at any time" in order 23 Rule 1, would apply to the suit pending in the trial Court and once the decree is passed by the trial Court then certain rights are vested in the party in whose favour the suit is decided and thus the plaintiff is not entitled to withdraw the suit, as a matter of course, at any time after the decree is passed by the trial court. In Ram Dhan's case the ruling of the Rajasthan High Court is to the effect that before granting any permission for withdrawal of the suit at the stage of second appeal, the plaintiff cannot claim as absolute right to institute a fresh suit and the facts and circumstances of each case will have to be seen before granting of such prayer. In all these cases referred to above, the right of the plaintiff to withdraw the suit was considered at the stage of first or second appeal, and after the decree has been passed by the trial Court whereby right under such decree in favour of one of the parties to the suit had been already crystallized.

8. The undisputed fact of the case in hand is that the petitioners delivered the possession of the suit premises to the owners of the building on 29th April, 1999. Indeed, the records disclose that pursis appear to have been filed on record confirming the delivery of the possession of the premises to the owners, namely, Mahadkar Construction Pvt. Ltd. and the same fact has been reiterated in para 8 of the Memo of Revision Application. Apparently, therefore, since 29th April, 1999, as rightly submitted by the learned Advocate for the respondent, the petitioners ceased to have any interest in the suit premises. Merely, because the respondent continued the proceedings against the petitioner even after 29th April, 1999, that would not amount to create any interest in favour of the petitioners in relation to the suit premises in the absence of the material on record disclosing that owners of the building at any time thereafter had agreed to continue such interest in favour of the petitioners. A categorical statement on the part of the petitioners, regarding parting with the possession of the suit premises on 29th April, 1999 infavour of the owners of the building, discloses that the petitioners had ceased to have any interest in the said premises from that day onwards. Being so, even assuming that there was any finding by the trial Court prior to 29th April, 1999 about the possession of the premises with the petitioners, that will not enure to the benefit of the plaintiff to seek restoration of the possession of the suit premises from the respondent.

9. It was also contended that the possession obtained by the respondent on 17th May, 1999, was by playing fraud upon the Court and by illegally obtaining police force and that, therefore, the same is required to be restored to the petitioners. However, while seeking this relief even before the lower appellate Court, the petitioners had nowhere claimed that the petitioners were in possession of the suit premises, at the time the same was taken over by the respondent on 17th May, 1999, though they had specifically stated in their application that, "these respondents further submit that these respondents have shut down the business and/or they have no intention to start the same. These respondents further submit that they have handed over possession to M/s. Mahadkar Constructions Pvt. Ltd., who happen to be the owners of the suit premises. These respondents further submit that petitioners had taken possession of the suit premises forcibly and illegally through police force." There is not even averment to the effect that the possession of the premises was taken from the petitioners. Considering the facts disclosed by the petitioners themselves before the Courts below as well as in the Memo of Revision Application, it is apparent that the petitioners did not continue to be in possession of the suit premises from 29th April, 1999 onwards and the materials on record nowhere disclose anything in favour of the petitioners in relation to in the suit premises on or after 29th April, 1999. Being so, one fails to understand on what basis right to "restoration of possession" is sought to be claimed by the petitioners in relation to the suit premises, merely because the suit filed by the respondent is withdrawn.

10. The reference to the decision of the Division Bench in the matter of Tukaram Mahadu Tandel's case can be of no help to the petitioners. That was a suit for partition, and it is well established that in a suit for partition once a preliminary decree is passed, each party to the suit can be construed as plaintiff and even if some of the parties desire to settle the matter amicably or to withdraw the suit or abandon the proceedings, the remaining parties even if they are defendants can seek themselves to be transposed as the plaintiff in the suit, and thereafter continue the same in relation to the partition of their shares. Being so, the observations made in relation to the partition suit, cannot be of any help while considering the right of the plaintiff to withdraw the suit otherwise than for a partition suit in terms of order 23, Rule 1 of C.P.C.

11. It was also sought to be argued that in case of payment of arrears of rent, the respondent can claim restoration of possession of the suit premises by the petitioners. The contention of the Advocate on behalf of the petitioners is that in case the respondent was to pay the arrears in terms of order dated 12th August 1999, he could have demanded the possession of the suit premises from the petitioners. Considering the consistent stand taken by the respondent that he had been in possession of the premises and he was illegally sought to be evicted on 28th April, 1999, and thereafter having acquired possession from 17th May, 1999, one fails to understand as to how even after payment of arrears of rent, the respondent could have asked for possession of the suit premises from the petitioners. The respondent having been in possession of the suit premises from 17th May, 1999, there could have been no occasion for the respondent to seek possession from the petitioners only on account of payment of arrears claimed by the petitioners and which was ordered to be paid under order dated 12th August, 1999. Being so, the arguments in this regard are also devoid of substance.

12. Once it is established from the facts and the circumstances of the case, that the plaintiffs can abandon or withdraw the suit, such withdrawal being unconditional, the question of rejection of the such request does not arise and in the absence of any adjudication of any rights of the parties, the question of passing any speaking order for allowing to withdraw simplicitor does not arise. Hence, merely the order allowing the withdrawal simplicitor, does not disclose any reason for passing such order, it cannot be said that the same has been passed either by illegal or improper exercise of jurisdiction, so as to warrant interference in revisional jurisdiction. That apart, it cannot be said that the impugned order is totally a non-speaking order as such. It does disclose reason for allowing the respondent to withdraw the suit. It clearly state that considering averment in para 8 of the application for withdrawal, the plaintiff has been allowed to withdraw the suit. The contents of the para 8 of the application disclose that the respondent-plaintiff wants to file a fresh suit for various reliefs on a different cause of action, and by way of abundant caution, the respondent had sought permission to withdraw the suit with liberty to file a fresh suit. Once the party wants to file a suit on the basis of a cause of action different from the one in the suit which is to be withdrawn, then the question of leave or liberty to file a fresh suit does not arise at all and hence, the trial Court has rightly allowed the respondent to withdraw the suit simplicitor.

13. Being so, there is no substance in the challenge by the petitioners to the impugned order and hence, the petition fails and is dismissed. Rule is discharged, with no order as to costs.

Certified copy expedited.

Petition dismissed.