Jai Ram vs Santosh And Ors
2022 Latest Caselaw 16318 P&H

                                      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                     CHANDIGARH

                           206                                      CR No.7258 of 2012
                                                                    Date of Decision: 09.12.2022


                           Jai Ram                                                              ....Petitioner

                                                               VERSUS

                           Santosh and Others                                               .....Respondents



                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                           Present :      Mr. Anurag Jain, Advocate for the petitioner.

                                          Mr. Ajay Jain, Advocate for the respondents.



                           ALKA SARIN, J. (Oral)

The present revision petition has been filed under Article 227 of

the Constitution of India challenging the order dated 05.11.2012 whereby

permission to withdraw the suit with liberty to file afresh on the same cause

of action has been denied by the First Appellate Court.

The brief facts relevant to the present lis are that the plaintiff-

petitioner filed a suit for declaration to the effect that the property as

described in the head-note of the plaint was owned and possessed by one

Bhagat Ram and being ancestral property devolved upon his sons. It is

further the case set up in the plaint that the property was divided by the

parties with the help of the Panchayat and their close relatives and that as

per the oral settlement the properties were to be divided in the manner as

fully described in the plaint. It was further averred that on 03.05.1991 the

said settlement was reduced into writing. The parties went to trial and on the JITENDER KUMAR 2022.12.10 13:13 I attest to the accuracy and authenticity of this order/judgment CHANDIGARH

basis of pleadings and evidence led, the suit was dismissed by the Trial

Court holding that the family settlement was undated and that it has not been

mentioned thereon as to who had scribed or typed the family settlement. It

was further held that even the site plans were undated and there was no

mention as to who had prepared those site plans. It is pertinent to note that

qua issue no.6 as to whether suit was bad for non-joinder of parties, the said

issue was not pressed and was decided against the defendants. At the

appellate stage, permission was sought to withdraw the suit with liberty to

file afresh on the ground that there was formal defect in the plaint as all the

legal representatives of Bhagat Ram, who were necessary parties, had not

been joined in. It was further contended that since the defendants disputed

the settlement, therefore, a suit for partition would be maintainable. The said

prayer for withdrawal of the suit with liberty to file afresh was contested by

the defendant-respondents and vide the impugned order dated 05.11.2012

the said application was dismissed.

Learned counsel for the plaintiff-petitioner has contended that

there is a formal defect in the suit inasmuch as all the legal representatives

were not impleaded. It is further the contention that as the said family

settlement was denied, hence, the plaintiff-petitioner would now file a suit

for partition since the property is ancestral in nature. In support of his

arguments, learned counsel for the plaintiff-petitioner has relied upon

judgment of Hon'ble Supreme Court in case of Baniram & Ors. vs. Gaind

& Ors. [1981 (4) SCC 209] and that of this Court in cases of Veer Bhan &

Anr. vs. Madan Gopal [1991 (1) PLR 199], M/s Subhash Chander JITENDER KUMAR 2022.12.10 13:13 I attest to the accuracy and authenticity of this order/judgment CHANDIGARH

Raman Kumar vs. Rattan Chand [1991 (1) PLR 204] and Nand Lal vs.

Bhim Sen [2000 (3) RCR (Civil) 173].

Per contra learned counsel for the defendant-respondents has

contended that once a decree is passed by the Trial Court and it is challenged

in appeal, it would not be open to the plaintiff-petitioner to withdraw the suit

so as to destroy the decree. It is further the contention that the suit of the

plaintiff-petitioner was dismissed wherein a declaration had been sought that

there was an oral family settlement with the help of Panchayat and relatives,

which was later reduced into writing. Once a finding has been returned by

the Court stating that the case as set out by the plaintiff-petitioner was not

made out, withdrawing the present suit at the appellate stage would cause

irreparable harm and injury to the defendant-respondents. In support of his

arguments, learned counsel for the defendant-respondents has relied upon

judgment of Hon'ble Supreme Court in case of R. Rathinavel Chettiar vs.

V. Sivaraman [1999 (2) RCR (Civil) 447] and that of this Court in cases of

Jubedan Begum & Ors. vs. Sekhewat Ali Khan [AIR 1984 Punjab 221],

Bharat Bhushan vs. Kamal Singh [2020 (1) PLR 80] and Chhidda vs.

Jagdish [2019(2) PLR 319].

I have heard learned counsel for the parties.

Order XXIII Rule 1 CPC reads as under :

(1) At 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 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave JITENDER KUMAR 2022.12.10 13:13 I attest to the accuracy and authenticity of this order/judgment of the Court."

CHANDIGARH

In case of R. Rathinavel Chettiar (supra), their Lordships of

Hon'ble Supreme Court had held as under :

"9. Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant.

10. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystallised and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. Now, 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. Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting 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 is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits.

11-17. xxx

18. In view of the above discussion, it comes out 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 parties to the suit under the decree cannot be taken away by withdrawal of suit at that stage unless very strong JITENDER KUMAR 2022.12.10 13:13 I attest to the accuracy and authenticity of this order/judgment reasons are shown that the withdrawal would not affect CHANDIGARH

or prejudice anybody's vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained."

This Court in case of Bharat Bhushan (supra) held as under :

"6. Plaintiff does not have any unqualified or unfettered right under Order 23 Rule 1 CPC to withdraw the suit at appellate stage when the rights have accrued to the defendant under a decree. The findings recorded by the trial Court are binding upon the parties and the Court should not deprive the defendant of the plea of res judicata or Order 2 Rule 2 CPC by allowing the plaintiff to withdraw the suit at the appellate stage. The right of the plaintiff to withdraw the suit at appellate stage is not an absolute right, but the same is subject to the condition, showing a very strong case where no prejudiced has been shown to be caused to the defendant.

7. In the instant case, no such parameters exist in favour of the plaintiff. The permission granted by the lower Appellate Court cannot be legally sustained. Hence, the present revision petition is allowed. The impugned order dated 12.10.2017 passed by the Additional District Judge, Narnaul is set aside. Normal consequences to follow".

The judgments relied upon by learned counsel for the plaintiff-

petitioner in the case of Baniram (supra) is contained in one paragraph and

the facts are not ascertainable from the said order. In view thereof, no

advantage can be derived by learned counsel for the plaintiff-petitioner. In

the case of Veer Bhan (supra), the Appellate Court specifically came to a

finding that there were formal defects in the suit and hence permitted the

plaintiff to withdraw the same. In the present case, there is no such finding JITENDER KUMAR 2022.12.10 13:13 that the suit suffer from any formal defect. In the case of Nand Lal (supra) I attest to the accuracy and authenticity of this order/judgment CHANDIGARH

the reasons for permission to withdraw the suit was that proper pleas and

material documents were not placed on the record, which went to the root of

the case. However, in the present case it is not the case set up that certain

pleas are left out. By withdrawing the suit with liberty to file afresh, the

plaintiff-petitioner is seeking to destroy a decree whereby the plea of the

plaintiff-petitioner qua an oral settlement subsequently stated to have been

reduced into writing has been rejected.

In the present case, the specific declaration sought by the

plaintiff-petitioner was that the property stood partitioned by way of an oral

settlement, which was subsequently reduced into writing. The Trial Court

returned a categoric finding that the plaintiff-petitioner had failed to prove

his case. The argument of learned counsel for the plaintiff-petitioner that the

suit suffers from a formal defect cannot be accepted inasmuch as no formal

defect has been pointed by learned counsel for the plaintiff-petitioner nor

was the suit dismissed for the reason that the suit suffered from any formal

defect. Further, the argument of learned counsel for the plaintiff-petitioner

that necessary parties were not impleaded deserves to be rejected on the

ground that issue no.6 was framed qua mis-joinder of parties which was

decided against the defendant-respondents. However, on issue no.4 it has

been held that the suit is not maintainable in the present form only on the

basis of findings on issue nos.1 and 2. Issue nos.1 and 2 read as under :

1. Whether the plaintiffs are owners in possession of

the land, as detailed in the plaint and are entitled to

relief of injunction against the defendants against their

forcibly dispossession or against alienation of the suit

JITENDER KUMAR 2022.12.10 13:13 land ? OPP I attest to the accuracy and authenticity of this order/judgment CHANDIGARH

2. Whether the plaintiffs are entitled to relief of

mandatory injunction directing the defendants to hand

over the vacant possession of pucca house, as detailed in

the plaint ? OPP

It is only in this context that the suit was not found

maintainable. Once a finding has been returned rejecting the family

settlement, the plaintiff-petitioner cannot be allowed to withdraw the suit

and re-agitate the matter. It has been held in the case of Bharat Bhushan

(supra) that withdrawal can be permitted at the appellate stage subject to the

condition that no prejudice is caused to the defendants. In the present case,

once the oral settlement stood rejected by the Trial Court, withdrawal of the

suit with permission to file afresh would certainly cause prejudice to the

defendant-respondents.

In view of the above, I do not find any merit in the present

revision petition, which is accordingly dismissed. Pending applications, if

any, also stand disposed off.

Any observation made herein shall not be treated as an

expression of opinion of this Court on merits of the case since the appeal

itself is pending adjudication before the First Appellate Court.

                                                                                      ( ALKA SARIN )
                           09.12.2022                                                     JUDGE
                           jk

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

JITENDER KUMAR 2022.12.10 13:13 I attest to the accuracy and authenticity of this order/judgment CHANDIGARH