Pravinchandra Harilal Selar vs Vinodchandra Harilal Selar
2022 Latest Caselaw 8703 Guj

    C/SCA/18344/2014                           JUDGMENT DATED: 03/10/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 18344 of 2014
                          With
     R/SPECIAL CIVIL APPLICATION NO. 15002 of 2014

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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1    Whether Reporters of Local Papers may be                      YES
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                       YES

3    Whether their Lordships wish to see the fair                   NO
     copy of the judgment ?

4    Whether this case involves a substantial                       NO
     question of law as to the interpretation of the
     Constitution of India or any order made
     thereunder ?

======================================
               PRAVINCHANDRA HARILAL SELAR
                            Versus
         VINODCHANDRA HARILAL SELAR & 31 other(s)
======================================
Appearance:
MR DHAVAL DAVE, SENIOR ADVOCATE with MR ABHISHEK M
MEHTA(3469) for the Petitioner(s) No. 1
 for the Respondent(s) No. 3.1,3.2,3.3
DECEASED LITIGANT for the Respondent(s) No. 27,3,6
MR ARPIT A KAPADIA(3974) for the Respondent(s) No. 1
MR JIGAR P RAVAL(2008) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,7,8,9
MS KJ BRAHMBHATT(202) for the Respondent(s) No.
28,29,30,31,32
MS VARSHA BRAHMBHATT(3145) for the Respondent(s) No.


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    C/SCA/18344/2014                             JUDGMENT DATED: 03/10/2022




28,29,30,31,32
NOTICE SERVED BY DS for the Respondent(s) No. 2,4,5
POOJA H BHARDWAJ(7844) for the Respondent(s) No.
28,29,30,31,32
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                          Date : 03/10/2022

                           ORAL JUDGMENT

[1.0] Since both these petitions by the petitioners - original plaintiff nos.1 and 2 separately are filed challenging the very same order dated 30.08.2014 passed below Exhs.1 and 515 rendered in Special Civil Suit No.627 of 1988 by the 9 th Additional Senior Civil Judge, Surat, it is proposed to be dealt with and disposed of by this common order.

[2.0] The petitioner of Special Civil Application No.18344 of 2014 - Pravinchandra Harilal Selar is original plaintiff no.1 and petitioner of Special Civil Application No.15002 of 2014 - Vinodchandra Harilal Selar is original plaintiff no.2 in Special Civil Suit No.627 of 1988.

[3.0] As coming out from the plaint, initially plaintiff nos.1 and 2 filed a suit against defendant - Chunilal Bhulabhai Patel, who is respondent no.28 herein in both the petitions. However, there are several amendments whereby defendants have been added and joined as parties as also plaintiffs to the suit. Initially plaintiffs i.e. petitioners of both these petitions filed the aforesaid suit for specific performance of agreement to sale in respect of the suit property filed against Chunilal

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Bhulabhai Patel, the only defendant. Later on, both the petitioners - original plaintiffs transferred their right under an agreement to sale in favour of plaintiff nos.3 to 6 by an agreement dated 20.02.1991, who are respondent nos.2 to 5 herein. Therefore, they preferred an application praying to join them as plaintiff nos.3 to 6 requesting suitable corrections in the plaint as mentioned in the application, Exh.179, which came to be granted and plaintiff nos.3 to 6 came to be joined in the suit with the express consent of original plaintiff nos.1 and 2 i.e. petitioners herein acknowledging agreement dated 20.02.1991 executed in favour of plaintiff nos.3 to 6 and assigning their rights in their favour. Both the petitioners - plaintiff nos.1 and 2 have in writing given their express consent to join plaintiff nos.3 to 6 in the suit, and therefore, the amendment as prayed for vide application, Exh.179 came to be granted. Though there is further assignment of right by plaintiff nos.3 to 6 in favour of other plaintiffs also, who have also been joined as plaintiffs and so on and there are deletion of certain plaintiffs as parties, which is not in dispute, further details in respect there of is not necessary to be gone into for determining the present controversy in these petitions, and therefore, it is not elaborated further.

[3.1] On 30.09.2013 plaintiff nos.3 to 6, 11, 13, 19 to 22, 24 to 28, as plaintiff nos.7 to 10, 12, 14 to 18 and 23 came to be deleted, vide Exh.515 prayed for abandoning the suit as parties have entered into settlement out of the Court, which was objected to by the advocate of plaintiff no.2 i.e. petitioner of Special Civil Application No.15002 of 2014. However, neither plaintiff no.1 i.e. petitioner of Special Civil Application

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No.18344 of 2014 nor his advocate were present, and therefore, notice came to be issued to the advocate representing plaintiff no.1 and for filing written objections advocate of original plaintiff no.2 was granted time up to 12.10.2013. Plaintiff no.2 in the suit vide Exh.517 submitted his written objection for withdrawal of the suit on the ground that the suit cannot be withdrawn without the consent of the plaintiffs and requested the Court the he wants to proceed further with the suit. It appears that plaintiff no.1 did not file any written objection to the application, Exh.515 for withdrawal of the suit.

[3.2] The learned Judge after hearing the advocates for the parties, vide impugned order below Exh.515 dated 30.08.2014 disposed of the whole suit recording the purshis of unconditional withdrawal in permanent Lok Adalat, which is under challenge before this Court by way of these petitions.

[4.0] Heard Mr. Dhaval Dave, Senior Advocate, learned Counsel assisted by Mr. Abhishek Mehta, learned advocate for the petitioner of Special Civil Application No.18344 of 2014. Hereinafter he would be referred as plaintiff no.1 and petitioner of Special Civil Application No.15002 of 2014 would be referred to as plaintiff no.2 in this order.

[4.1] Mr. Dave, learned Counsel, submitted that in view of Sub-Rule 5 of Rule 1 of Order XXIII of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'), without the consent of all the plaintiffs, the Court would not be authorized to permit abandoning of the suit or a part of claim

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under Sub-Rule 1 or to withdraw the same under Sub-Rule 3 of Rule 1 of Order XXIII of 'the Code'. According to his submission, suit could not have been permitted to be withdrawn without the consent of plaintiff no.1 as he is not signatory to the purshish, Exh.515. Reading Sub-Rule 1 of Rule 1 of Order XXIII of 'the Code', it is submitted that in both the eventuality, under Sub-Rule 1 of Rule 1 and Sub-Rule 3 of Rule 1 of Order XXIII, consent of all the plaintiffs to withdraw or abandon the suit or part of claim is required. If any one plaintiff is not consenting to the same, it will not authorize the Court to permit withdrawal of the suit either conditionally or unconditionally or part of the claim in the suit. He has further submitted that since plaintiff no.2 has also in writing objected to grant of permission to withdraw the suit, the order impugned could not have been passed by the learned Judge. According to his submission, consent of the plaintiffs to the suit for the purpose of withdrawal is mandatory and even if plaintiff no.1 has not objected to in writing, it will not empower the Court to treat it as his tacit consent.

[4.2] Relying on a decision of the Punjab and Haryana High Court in the case of Kuldip Singh & Others Vs. Smt. Kaushalyadevi and Others reported in 2008 (2) I.L.R. Punjab and Haryana 936, which according to his submission is identical on facts, submitted that Sub-Rule 5 of Rule 1 of Order XXIII of 'the Code' is held to be not permitting withdrawal by some of the co-plaintiffs without consent of others. He has further submitted that in the aforesaid decision, considering two decisions of Bombay High Court as also Calcutta High Court even considering the provisions of

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Order XXIII prior to amendment where no Sub-Rule 5 of Rule 1 of Order XXIII was available, despite that, those High Courts have taken a view that consent of the plaintiffs for abandonment or withdrawal of the suit is necessary.

[4.3] Mr. Dave, learned Counsel, has relied on another decision of the Delhi High Court on the same line in the case of J.K. Bhatia Vs. A.K. Bhatia & Ors reported in (2007) 144 DLT 28 drawing attention of the Court to paragraph 4 thereof holding that consent of the co-plaintiffs for seeking withdrawal of the suit or part thereof is mandatory and unless there is a consent of other plaintiffs, the withdrawal cannot take place.

[4.4] On the aforesaid submissions and the decisions relied on by him, he has submitted that the petitions be admitted and allowed.

[5.0] As against that, Mr. Jigar Raval, learned advocate for respondent nos.7 to 26 and Ms. Varsha Brahmbhatt, learned advocate for respondent nos.28 to 32, submitted that the petitioners i.e. plaintiff nos.1 and 2 have assigned their right, title and interest in the suit property in favour of other co-plaintiffs, who were subsequently joined as plaintiffs in the suit and they confirmed having assigned their right in favour of other co-plaintiffs, and therefore, they have lost their right in the suit property, and therefore, according to the submission of the learned advocate for the respondents, no consent of plaintiff nos.1 and 2 is required for the purpose of withdrawal of the suit. It is further submitted that not only that, they have assigned their right, title and interest in the suit property in

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favour of other co-plaintiffs, and therefore, they have lost their right in the suit property and they even stopped participating in the suit. It is further submitted that right to examine themselves as witnesses in the suit was also closed. It is further submitted that vide Exh.366 on 11.05.2007 issues were settled by the court. Vide order dated 22.07.2011 right to lead evidence on behalf of plaintiff nos.1 and 2 came to be closed. It is further submitted that vide Exh.464 plaintiff no.1 on 14.10.2011 requested the Court to record his deposition in the suit and to delete rest of new plaintiffs joined in the suit. In the said application, Exh.464, plaintiff no.1 claimed that he has not assigned his right to any one. He has also requested for providing Police protection. The said application of plaintiff no.1 came to be rejected vide order dated 19.11.2012. Similarly, plaintiff no.2 vide application, Exh.498 dated 05.03.2013 requested the Court to reopen not only his own right but the right of plaintiff nos.1 and 2 to lead evidence, which came to be closed vide order dated 22.07.2011. The said application also with detailed reasoned order came to be rejected by the Court on 04.04.2013. It is further submitted that plaintiff no.2 challenged that order by filing Special Civil Application No.6928 of 2013 before this Court and when it came up for hearing on 27.03.2014, learned advocate for plaintiff no.2, who preferred that petition, made a statement that since he has already filed a substantive suit, being Special Civil Suit No.232 of 2012, he did not press that petition and withdrew it. It is further submitted that plaintiff no.1 had not challenged any order passed below Exh.464 where he prayed for examining himself as witness, which came to be rejected as aforesaid.

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[5.1] Mr. Raval and Ms. Brahmbhatt, learned advocates for the respondents, submitted that not only their right in the suit property have already been assigned by plaintiff nos.1 and 2 in favour of them, their right to lead evidence is also closed and it was refused to be reopened. Though plaintiff no.2 challenged the order passed below Exh.498 before this Court, he withdrew the said petition stating that he has already filed a substantive suit. Even if their consent is not taken to withdraw the suit, it is of no consequence. They have further submitted that other plaintiffs entered the shoes of plaintiff nos.1 and 2 when they had assigned their right in favour of initially plaintiff nos.3 to 6 and they further assigned that right in favour of other plaintiffs, who were subsequently joined in the suit as plaintiffs. They could have been substituted instead of continuing plaintiff nos.1 and 2 in the suit. At any rate, as submitted by learned advocates for the contesting respondents, when their right to lead evidence is closed and refused to be reopened, those orders become final and plaintiff no.2 has already filed substantive suit for the subject matter itself joining plaintiff no.1 as defendant no.1 in his suit, even if he has not consented for withdrawal of the present suit, it will not affect the end result i.e. withdrawal of the suit.

[5.2] Mr. Raval, learned advocate for the contesting respondent, relying on the decision of the Supreme Court in the case of Ashok Kumar Kalra Vs. Wing CDR. Surendra Agnihotri and Ors. reported in (2020) 2 SCC 394, more particularly, relying on paragraph 14, it is submitted that the provisions under the procedural law should not be construed in

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such a way that it would leave the Court helpless. It is further submitted that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice.

[5.3] It is further submitted that plaintiff no.1 is an advocate by profession and plaintiff no.2 is his real brother. When they have assigned their right in writing in favour of co- plaintiffs, their right in the suit property does not remain and there remains no interest for them in it, and therefore, even if their consent, since they existed as plaintiff in the suit, is not taken by the co-plaintiffs before withdrawing the suit, it is of no consequence.

[5.4] Relying on the decision of the Supreme Court in the case of Sugandhi (Dead) by legal representatives and another Vs. P. Rajkumar Represented by his Power Agent Imam Oli reported in (2020) 10 SCC 706, it is submitted that the procedural and technical hurdles shall not be allowed to come in way of Court while doing substantial justice. It is further submitted that if procedural violation does not seriously cause prejudice to adversary party, Courts must lean towards doing substantial justice rather than relying upon procedural and technical violation.

[5.5] On the aforesaid submissions as also the decisions relied on by the contesting respondents, it is submitted that the petitions be dismissed.

[6.0] In reply to the decision relied on by learned advocate Mr. Raval in the case of Ashok Kumar Kalra

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(Supra), Mr. Dave, learned Counsel, submitted that the said case was pertaining to counter claim and procedure prescribed therein, which is not a substantive provision whereas withdrawal of a suit is not procedural one provided under 'the Code' and it is substantive in its nature.

[6.1] For the decision relied on in the case of Sugandhi (Dead) by legal representatives and another (Supra) by learned advocate Mr. Raval, it is submitted by Mr. Dave, learned Counsel, that again the said case pertains to production of some of the documents after the issues were settled and it pertains to a procedural law, and therefore, even if it is permitted by the Apex Court, so far withdrawal of the suit or part of the claim, it pertains to substantive provision and not procedural provision under 'the Code', and therefore, such precedents cannot be relied on.

[7.0] Having heard the learned advocates for the appearing parties as also going through the impugned order and the documents annexed with it, it emerges that plaintiff no.1 is an advocate by profession and plaintiff no.2 is his real brother, who jointly filed the suit for specific performance of an agreement to sale against only defendant at the relevant time and during pendency of the suit, whatever right or interest plaintiffs had, as they were plaintiffs in the suit, they assigned those very rights in favour of plaintiff nos.3 to 6, who were later on joined in the suit, acknowledging assignment of right of plaintiff nos.1 and 2 in their favour and with their consent. Not only that, plaintiff nos.3 to 6 have also further assigned their right in the very suit property in favour of other plaintiffs.

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As such, plaintiff nos.1 and 2, through represented through a lawyer, lost interest in the suit and their right to lead evidence also came to be closed. Though plaintiff no.2 has prayed for reopening his right to lead evidence on behalf of plaintiff nos.1 and 2, the said application came to be rejected. However, plaintiff no.2 preferred a petition before High Court challenging the said order but ultimately he withdrew the same on the ground that he already filed substantive suit, being Special Civil Suit No.232 of 2012. Thus, even if the suit is to proceed, they would not be able to produce or bring on record showing their right in the suit property, more particularly, when rest of the plaintiffs and defendants have settled their dispute inter se out of the Court and pursuant thereto other plaintiffs prayed for withdrawal of the suit, of course without the consent of plaintiff nos.1 and 2. In my opinion, once plaintiff nos. 1 and 2 both have assigned their right and interest in the suit property itself by way of assignment deed in writing, the persons in whose favour the said rights are assigned, they entered the shoes of original plaintiffs i.e. plaintiff nos.1 and 2 and they could have been replaced by plaintiff nos.3 to 6 and since it is not done, plaintiff nos.1 and 2 cannot take disadvantage of the same as assignment of their right in favour of other plaintiffs would not have been without any consideration. Therefore, having pocketed the consideration, loosing interest even in the suit, for whatever reason they are continued on record of the suit as plaintiff nos.1 and 2, will not give them any right to assert their consent for withdrawal of the suit.

[7.1] Reliance placed on the decision of Punjab and Haryana in the case of Kuldip Singh (Supra) by the learned

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Counsel for the petitioners to assert that the provisions under Sub-Rule 5 of Rule 1 of Order XXIII of 'the Code' is mandatory, is determined on its own facts. It is in the peculiar facts and circumstances of the case that by withdrawal of the Appeal in that case with a view to see that other appellants are not unfairly prejudiced, the said provision has been interpreted to be so whereas here in the present case allowing such objection at the instance of the petitioners to be raised after they had already assigned their right and interest in the suit property would on the contrary unfairly prejudice other plaintiffs in the suit.

[7.2] So far as plaintiff no.1 is concerned, he is advocate by profession represented in the suit even by another advocate but he never objected to even withdrawal whereas plaintiff no.2, though has objected in writing to the withdrawal, his objections were overruled by the Court and suit was allowed to be withdrawn despite objection by plaintiff no.2. However, when plaintiff no.2 himself has already filed substantive suit and because of that he has also withdrawn the challenge to refusal of reopening his right to lead evidence, neither plaintiff no.1 nor plaintiff no.2 i.e. petitioners are unfairly prejudiced because of withdrawal of the suit. No attempt of such plaintiffs should be encouraged, more particularly, when they had already assigned their right and interest in the suit property in favour of other co-plaintiffs and to raise such, too technical objection, more particularly, when the other co-plaintiffs entered into the shoes of plaintiff nos.1 and 2 by assignment deed of the suit property. Such provision though interpreted to be mandatory by Punjab and Haryana

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High Court as also Delhi High Court having persuasive value but on the ground that no right of party is unfairly prejudiced, in my opinion, for that provisions cannot be said to be mandatory. Even if, it is held to be mandatory, in the facts and circumstances of the present case, plaintiff nos.1 and 2 cannot be permitted to take undue advantage of situation, having assigned their right and interest in the suit property, possibly may not be without consideration, to raise such a technical objection when their right is already protected by way of a substantive suit filed by plaintiff no.2 joining plaintiff no.1 therein as defendant no.1 in the suit. Interpreting the said provisions in Sub-Rule 5 of Rule 1 of Order XXIII of 'the Code' to be procedural for the fact that it protects the right and interest of the other co-plaintiffs in the suit but when other plaintiffs have already encashed their right in the suit property by executing assignment deed, in my opinion, even if it is to be held to be mandatory provisions, absence of their consent in the present case for the withdrawal of the suit in such circumstances would not enure to the benefit of the petitioners herein. No fruitful purpose would be served to continue with the suit by plaintiff nos.1 and 2, if at all it is permitted, when their right to lead evidence was already closed and it was refused to be reopened and those orders have become final. Over and above that, plaintiff no.2 has already filed substantive suit for the very same property and have joined plaintiff no.1 as defendant no.1 in the suit, and therefore, right and interest of both the plaintiffs are already protected by way of that substantive separate suit filed. If they are permitted to take undue advantage of such provisions, it would encourage them, it would be if not dishonest attempt but surely not an

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honest attempt. The procedural law prescribed should not be a tyrant but a servant, not an obstruction but an aid to justice as held by the Supreme Court in the case of Ashok Kumar Kalra (Supra) and in my opinion, interest of justice would be served better if these petitions are rejected.

[8.0] Keeping the overall circumstances in mind and the reasons assigned hereinabove, I see no reason to entertain these petitions, and therefore, both the petitions are hereby rejected. Notice is discharged in both the petitions. Ad-interim relief granted earlier, if any, stands vacated.

(UMESH A. TRIVEDI, J.)

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