Gaya Prasad vs The State Of U.P.Thru Prin. Secy. ...
2017 Latest Caselaw 3296 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R. 
 
Court No. - 4
 

 
Case :- MISC. SINGLE No. - 1732 of 2015
 

 
Petitioner :- Gaya Prasad
 
Respondent :- The State Of U.P.Thru Prin. Secy. Deptt.Of Revenue & Others
 
Counsel for Petitioner :- Amar Nath Dubey
 
Counsel for Respondent :- C.S.C.,Ajeet Kumar Mishra,M.P.Yadav,Manoj K. Verma,S.W. Zaman,Yogendra Nath Yadav
 

 
Hon'ble Rajan Roy,J.

Heard.

This is a writ petition challenging an order dated 28.2.2015 passed by the Addl. Commissioner-II, Allahabad Division, Allahabad, in revision No.14/12-13 under section 333 of the U.P. Zamindari Abolition & Land Reforms Act 1950 (hereinafter referred as 'Act 1950') as well as the order dated 8.5.2013 passed by the Sub Divisional Magistrate (S.D.M.) in the proceedings under section 176 of the Act 1950.

In nutshell, the facts of the case are that the opposite party No.6 Ram Lakhan initiated proceedings for division of shares/partition of the holding in question under section 176 of the Act 1950 by instituting a suit on 23.10.1989. A compromise was arrived at between the plaintiff Ram Lakhan and his two other brothers namely Surya Narayan, opposite party no.5 herein and Gaya Prasad, petitioner herein. Based thereon a preliminary decree was passed by the Court below on 7.2.1990. On 9.4.1996 the petitioner herein i.e. Gaya Prasad filed an application for proceeding to prepare the final decree in terms of the preliminary decree. This process started and reports were also requisitioned. Objections were also filed. But, on 21.4.2011 an application was filed by the opposite party no.6-plaintiff for withdrawal of the said suit, to which the opposite party no.5 filed objections. In spite of the objections the suit was dismissed as withdrawn on 16.12.2011 with the observations that if the plaintiff did not want to pursue his suit, he could not be compelled to do so.

The opposite party No.5 being aggrieved filed an appeal, but during the appeal and without mentioning about the said appeal he also moved an application for preparation of a final decree before the Court where the suit under section 176 had been filed and thereafter withdrew the appeal. On the said application of the opposite party no.5 the order dated 8.5.2013 was passed by the S.D.M. Court by which the application of the opposite party no.5 for preparation of final decree was accepted and the parties were asked to address the Court on the "Chitthi Batwara" and the objections in respect thereof. The plaintiff who had withdrawn the suit, did not challenge this order, but the petitioner herein who was a defendant in the suit challenged the same by filing a revision before the Addl. Commissioner under section 333 of the Act 1950. The said revision was dismissed. It is against the aforesaid background that this writ petition has been filed.

The contention of the learned counsel for the petitioner was that once the suit had been withdrawn by the plaintiff, then the opposite party no.6 herein could not have filed an application for preparation of final decree in terms of the preliminary decree, especially as after after filing an appeal against the order of withdrawal the same had been withdrawn. More so, as the application had been filed by concealing this fact. He also contended that a plaintiff cannot be compelled to pursue a suit. Once the suit was withdrawn, then the preliminary decree passed therein also stood nullified.

Sri M.P. Singh Yadav, learned counsel appearing for the opposite party no.5, on the other hand, submitted that the appeal was filed on wrong legal advice. In fact, even after the said withdrawal the preliminary decree could not be said to have been nullified. He contended that in fact the suit should not have been allowed to be dismissed as withdrawn, as, once a preliminary decree has been prepared and the shares of the parties are defined, then each of such share-holder is entitled to seek execution of the preliminary decree and for preparation of a final decree, but this legal aspect which is very well settled, was not appreciated by the Court below. It is against this background that an application was filed for preparation of the final decree and the Court below appreciated this submission subsequently and passed the order dated 8.5.2013 which is in consonance with the legal position as is enunciated in the case of Urmila Devi v. Pooran Chand, 1998 RD 808. In this regard he also relied upon the decisions of the Supreme Court in the case of Mool Chand & ors. v. Deputy Director of Consolidation & ors., Appeal (Civil) No.10214 of 1981 decided on 16.8.1995 wherein the nature of a preliminary decree was discussed. He has also relied upon another decision of the Supreme Court reported in AIR 1963 SC 992, Venkata Reddi & ors. v. Rothi Reddi.

Having heard the learned counsel for the parties and perused the record no doubt the conduct of the opposite party no.5 in filing an application for preparation of final decree after withdrawing the appeal filed against the order dismissing the suit as withdrawn, that too, concealing the aforesaid fact, was not appropriate and it is also a fact that the suit was dismissed as withdrawn on 16.12.2011 and the said order was not set aside in appeal, but the legal position is well settled that a preliminary decree is a final decision which is appealable under section 331 of the Act 1950 just as a preliminary decree prepared by a Civil Court is appealable under the provisions of the Code of Civil Procedure (C.P.C.) and if no appeal is filed challenging the same, then it attains finality.

It is also a well settled that any of the persons whose shares have been defined in the preliminary decree, can pursue the preparation of a final decree in terms of the preliminary decree and once such a preliminary decree has been prepared and has attained finality, even if it be on the basis of a compromise, the suit should not be allowed to be withdrawn and even if any such order is passed, its effect would not be of nullifying such a preliminary decree as the said decree finally defines the share of the parties. Reference may be made in this regard to the decisions of the Supreme Court in the case of Mool Chand (supra) and Venkata Reddi (supra) wherein the nature of a preliminary decree has been considered and defined. Reference may also be made to a decision of the Supreme Court reported in (1999) 4 SCC 89, R. Rathinavel Chettiar & anr. v. V. Sivaraman & ors., wherein also the essential elements of a preliminary decree and the rights of the parties crystallized in terms thereof have been discussed and it has been held that a preliminary decree is final unless it is reversed, recalled, modified or set aside in appeal, revision, review etc. In the said case question of withdrawal of a suit by the plaintiff at the appellate stage fell for consideration before the Supreme Court and after considering a catena of decisions on the subject that once a decree is passed, it becomes conclusive of the rights of the parties to the suit which gets crystallized in terms thereof and unless the decree is reversed, recalled, modified or set aside, parties cannot be divested of their rights under the decree. The decree can be recalled, reversed or set aside either by the Court which had passed it as in review, or by the appellate or revisional court. The Court in the said case was considering a final decree. It opined that since withdrawal of the suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree effecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course, but has to be allowed rarely only when a strong case is made out. It also referred to the consensus of judicial opinion that though as a general proposition, a plaintiff can, at any time, withdraw a suit, but where the parties have entered into a compromise and the defendant has acquired a right under the compromise, it would not be open to the plaintiff who had consented to the compromise, afterwards, to annul its effect by withdrawing the suit under Order XXIII Rule 1 read with Rule 3 thereof. It considered the decision of this Court reported in AIR 1962 Allahabad 263, Kedar Nath v. Chandra Kiran, wherein it had been held that where the case is at the stage of second appeal and the trial Court has given a finding of fact which is binding in second appeal, the Court should not deprive the party of the plea of rea judicata by allowing the plaintiff to withdraw the suit at that stage. It also considered the decision of the Rajasthan High Court in Ram Dhan v. Jagat Prasad Sethi, AIR 1982 Rajasthan 235, wherein the decision of this Court in Kedar Nath (supra) was followed and it was held that if the withdrawal of the suit at the appellate stage would have the effect of destroying the rights which had come to be vested in the defendant-respondents, the suit would not be permitted to be withdrawn and the defendant could not be disentitled from using the finding even in such a suit as res judicata in subsequent proceedings. The Supreme Court went on to hold that where a decree passed by the Trial Court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree, cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not effect or prejudice anybody's vested rights. Accordingly, it set aside the judgment of the High Court which took a contrary view in the matter.

Reference may now be made to a judgment rendered by a Division Bench of the Madras High Court in the case of Seethai Achi v. Mevappa Chettiar reported in AIR 1934 Mad. 337, wherein it was categorically held as under:

"3. On behalf of the appellant, reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi v. Mevappa Chettiar, AIR 1934 Mad. 337, where the Court held :

"Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawal from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. In suits for partition, if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit."

We do not think, as urged by learned counsel, that the learned Judges of the Madras High Court were laying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiff's withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such a right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties. In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit."

In the aforesaid case the right of a party to enforce a compromise in spite of the withdrawal of the suit was held to be legally indisputable.

Now to revert back to the decision of the Supreme Court in Mool Chand (supra) so as to consider as to what is the nature of a preliminary decree. In the said case the Supreme Court had the occasion not only to consider the provisions of the C.P.C. applicable to Civil Courts, but also section 176, 179, 180 etc., especially Rules 156 and 157 of the U.P. Zamindari Abolition & Land Reforms Rules 1952 and thereafter it observed that in a suit for partition, the Revenue Court also, like the Civil Court, has first to pass a preliminary decree determining and declaring the rights of the parties and their shares, if any, in the holding. Thereafter, proceedings for the preparation of the final decree are initiated under Rule 158 to 164 which lay down the various modes in which a decree for partition can be implemented and the respective shares of the tenure holders separated, in accordance with the rights and shares already determined under the preliminary decree. In the said case it was held that if the appeal is not filed against the preliminary decree and its correctness is not challenged, it becomes final.

As the Supreme Court was seized with the issue as to whether on publication of Notification under section 4 of the U.P. Consolidation of Holdings Act 1953 a preliminary decree passed by a Civil Court would stand nullified and will abate, it opined that if against the preliminary decree an appeal was pending on the date of such Notification, then the entire proceedings will abate, but if no appeal was pending, then it would not abate for the reason a preliminary decree is a final decision and if it had attained finality then it would be effective and will have to be taken into consideration by the Consolidation Courts during consolidation operations under section 9 of the Act 1953.

The ratio of the aforesaid judgments is that a preliminary decree finally decides the rights and shares of the parties and unless appealed, it is a final determination in respect thereof. It being so in the instant case the application for withdrawal of the suit at the behest of the plaintiff after the preparation of the preliminary decree should not have been allowed, certainly not in the casual manner it was done by observing that the plaintiff who does not wish to pursue the suit, cannot be compelled to do so. While allowing the suit to be withdrawn the Court concerned was wholly oblivious of the fact that the rights of the parties and their share in the holding in question had been determined finally by the preliminary decree which could not be nullified and also the Division Bench judgment in the case of Urmila Devi (supra) that once such preliminary decree had been prepared, then any of the parties whose share had been defined could seek the preparation of the final decree in terms thereof. In view of this legal position this Court while exercising powers under Article 226 of the Constitution of India cannot be unmindful of the same while deciding this case. The S.D.M. Court as also the Revisional Court have rightly taken the view that once a preliminary decree had been prepared, then an application for preparation of final decree was maintainable at the behest of any or all of the parties to the said suit.

As already stated earlier, no doubt, there was a glitch on account of certain intervening events i.e. the filing of the appeal and the concealment of fact by the opposite party no.5 while filing the subsequent application for preparation of decree, but this Court has no hesitation in saying that the order of withdrawal of the suit was not legally sustainable and even otherwise it should not be understood to have terminated the suit proceedings and nullifying the preliminary decree as it would be contrary to the legal position discussed hereinabove, therefore, in the peculiar facts and circumstances of the case as the Courts below had accepted the application of opposite party no.5 for proceeding to prepare the final decree in terms of the preliminary decree which has attained finality, no interference is called for by this Court as substantial justice has been done. Technical considerations cannot be allowed to prevail over the ends of substantial justice.

As far as the petitioner herein is concerned, he himself had filed an application for implementation of the preliminary decree and preparation of final decree as also partition by Chitthi Batwara, therefore, it is indeed surprising as to how he felt aggrieved subsequently and has approached upto this Court in the matter, when the original plaintiff has not assailed the subsequent orders passed in favour of the opposite party no.5. In this view of the matter the orders impugned cannot be faulted. The writ petition is accordingly dismissed.

At this stage, learned counsel for the petitioner prays that the petitioner may be heard before the S.D.M. Court.

It goes without saying and is mentioned in the order of the S.D.M. Court itself that now the parties will address it on the objections to Chitthi Batwara filed by them, therefore, the matter shall proceed in accordance with law and if there is no other legal impediment, it shall be finalized with expedition, say within 6 months from the date a certified copy of this order is submitted.

Order Date :- 17.8.2017

A.Nigam

(Rajan Roy, J.)