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CASE NO.:

Appeal (civil) 3287 of 2000

PETITIONER:

K.S. BHOOPATHY AND ORS.

RESPONDENT:

KOKILA AND ORS.

DATE OF JUDGMENT: 08/05/2000

BENCH:

A.P. MISRA & DP. MOHAPATRA

JUDGMENT:

JUDGMENT

2000 (3) SCR 1168

The Judgment of the Court was delivered by D.P. MOHAPATRA, J. Leave

granted.

This appeal filed by the defendants is directed against the judgment/ order

of the Madras High Court in Second Appeal No. 807 of 1996 and CMP Nos.

7569/96 and 1085/96, along with the application filed by the respond-ents 1

& 2 under Order XXIII Rule 1(3) Civil Procedure Code (CPC for short)

seeking permission of the Court to withdraw the suit with leave to file a

fresh suit.

The factual matrix of the case relevant for appreciation of the questions

raised in the appeal may be stated thus : Respondents 1 & 2 herein filed

O.S. No. 197/89 (subsequently re-numbered as 614/89) in the Court of the

District Munsif, Erode arraying the appellants and respondents 3 & 4 as

defendants in the suit. In the said suit the plaintiffs sought relief inter

alia, of injunction against defendants 1 & 2 restraining them from

establishing and running a flour mill, on their property and for further

injunction restraining them from disturbing the plaintiffs exclusive user

of the pathway lying between the properties of the plaintiffs on one side

and defendants 1 & 2 on the other. Defendants 1 & 2 in the suit as owners

sold portions of their land by separate sale deeds dated 10.8,78 executed

in favour of plaintiffs 1 & 2 which were shown in the map attached to the

plaint in blue and green colours respectively. The pathway is similarly

shown in red colour in the map. It was the case of the plaintiffs that

establishment of the proposed flour mill by the defendants 1 & 2 will act

as a nuisance and will seriously prejudice the plaintiffs' user of their

property on which they have constructed a clinic. Regarding the pathway the

case of the plaintiffs is that they have exclusive right of user of the

same and the plaintiffs should not be permitted to interfere with their

right ia any manner.

The defendants I and 2 refuted the claims of the plaintiffs in respect of

both, the prayers and contended that the proposed flour mill will in no way

act as a nuisance against user of the property by the plaintiffs and that

the plaintiffs have no exclusive right of user of the pathway which is a

common pathway meant to be used by both the parties.

The trial court decreed the suit holding inter alia that the plaintiffs

have an exclusive right of user over the pathway. The trial court also

accepted the case of the plaintiffs in respect of the prayer for injuncting

contesting defendants from establishing a flour mill on their property.

On appeal by defendants 1 & 2 the first appellate court modified the decree

relating to the pathway holding that the plaintiffs have no exclusive right

of user of the pathway and all the parties are entitled to use the same as

it is a common path way.

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Being aggrieved by the modification of the decree to the extent noted above

the plaintiffs filed the second appeal, S.A, No. 807/96, before the High

Court of Madras. Before the said appeal was admitted the appellants filed

an application under Order XXIII Rule 1 (3) CPC seeking permission of the

Court to withdraw the suit with leave to file a fresh suit. It was averred

in the application, inter alia, that no prayer for declaration of

plaintiffs" title over the pathway was made in the plaint and in view of

the cloud raised against their exclusive title and right of user in the

judgment of the lower appellate court it was necessary to withdraw the suit

and file a fresh suit properly constituted and seeking appropriate relief.

The contesting defendants objected to the prayer in the application on the

ground, inter alia, that it was a move by the plaintiffs to get over the

finding that they have no exclusive right of user over the suit pathway and

that the defendants have also a right of user of die same since it is a

common pathway meant to be used by the parties. According to the defendants

in the circumstances the permission sought for withdrawal of the suit with

leave to file a fresh suit according to the defend-ants could not be

granted. The application filed by the appellants was allowed by the High

Court in the impugned order.

The main thrust of the arguments of learned senior counsel for the

appellants was that the High Court erred in entertaining the application

under Order XXIII Rule 1(3) CPC at a stage when the second appeal had not.

been admitted. The High Court had not formulated any substantial question

of law which required examination in the second appeal. Elucidating his

contention the learned senior counsel submitted that the provision in

section 100 CPC makes it mandatory for the Court to formulate the

substantial question of law to be examined in appeal before admitting the

same. That having not been done in the present ease the application filed

under Order XXIII Rule 1(3) CPC was premature.

Learned counsel appearing for the plaintiff-respondents on the other hand

submitted that the High Court heard both the parties before granting the

application for withdrawal of the suit with leave to file fresh suit, and

therefore, no exception can be taken to the order that it was premature. It

was the further submission, of the learned counsel that Order XXIII Rule

1(3) vests wide discretion in the Court to grant permission for withdrawal

of the suit with leave to file a fresh suit and such discretion having been

exercised by the High Court in favour of the applicants the order is not

liable to be interfered by this Court in exercise of jurisdiction under

Article 136 of the Constitution.

Order XXIII Rule 1 CPC makes provisions for withdrawal of suit or

abandonment of part of claim. Relevant portions of the provision arc

extracted hereunder :

Order XXIII "Withdrawal and Adjustment of Suits

(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 of the

Court.

(3) Where the Court is satisfied. -

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to

institute a fresh suit for the subject-matter of a suit or part of a claim,

it May, on such terms as it thinks fit, grant the plaintiff permission to

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withdraw from such suit or such part of the claim with liberty to institute

a fresh suit in respect of the subject-matter of such suit or such part of

the claim.

(4) 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,"

(Emphasis supplied)

The present Rub which was introduced in place of the old Rule 1 by the

Amendment Act of 1976 makes a distinction between absolute withdrawal which

is termed as 'adandonment' and withdrawal with the permission of the Court.

This clear distinction is maintained throughout in the substituted Rule by

making appropriate changes in the wording of various sub-rules of Rule 1,

The law as to withdrawal of suits as enacted in the present Rule may be

generally stated in two parts; (a) a plaintiff can abandon a suit or

abandon a part of his claim as a matter of right without the permission of

the Court, in that case he will be precluded from suing again on the same

cause of action. Neither the plaintiff can abandon a suit or a part of the

suit reserving to himself a right to bring a fresh suit, nor can the

defendant insist that the plaintiff must be compelled to proceed with the

suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule

(3), be permitted by the Court to withdraw from a suit with liberty to sue

afresh on the same cause of action. Such liberty being granted by the Court

enables me plaintiff to avoid the bar in Order II Rule 2 and Section 11

CPC.

The provision in Order XXIII Rule 1 CPC is an exception to the common law

principle of non sait Therefore on principle an application by a plaintiff

under sub-rule 3 cannot be treated on par with an application by him in

excercise of the absolute liberty given to him under sub-rule 1, In (he

former it is actually a prayer for concession from the Court after

satisfying the Court regarding existences of the circumstances justifying

the grant of the such concession. No doubt, the grant of leave envisaged in

sub-rule (3) of Rule 1 is at the discretion of the Court but such

discretion is to be exercised by the Court with caution and circumspection.

The legislative policy in the matter of exercise of discretion is clear

from the provisions of sub-rule (3) in which two alternatives are provided;

(1) where the Court is satisfied that a suit roust fail by reason of some

formal defect, and the other where the Court is satisfied that there are

sufficient grounds for allowing the plaintiff to institute a fresh suit for

the subject matter of a suit or part of a claim. Clause (b) of sub-rule (3)

contains the mandate to the Court that it must be satisfied about the

sufficiency of the grounds for allowing the plaintiff to institute a fresh

suit for the same claim or part of the claim on the same cause of action.

The Court is to discharge the duty mandated under the provision of the Code

on taking into consideration all relevant aspects of the matter including

the desirability of permitting the party to start a fresh round of

litigation on the same cause of action. This becomes all the more important

in a case where the application under Order XXIII Rule (1) is filed by the

plaintiff at the stage of appeal. Grant of leave in such a case would

result in the unsuccessful plaintiff to avoid the decree or decrees against

him and seek a fresh adjudication of the controversy on a clean slate. It

may also result in the contesting defendant losing the advantage of

adjudication of the dispute by the Court or courts below. Grant of

permission for withdrawal of a suit with leave to file afresh suit may also

result in annulment of a right vested in the defendant or even a third

party. The appellate/second appellate court should apply its mind to the

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case with a view to ensure strict compliance with the conditions prescribed

in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in

permitting the suit with leave to file a fresh suit on the same cause of

action. Yet another reason in support of this view is that withdrawal of a

suit at the appellate/second appellate stage results in wastage of public

time of Courts which is of considerable importance in the present time in

view of large accumulation of cases in lower courts and inordinate delay in

disposal of the cases. In Bakhatawar Singh and Another v. Soda Kaur and

Another, [1996] 11 SCC 167 the question of grant of permission under clause

(3) of Order XXIII Rule 1 of the CPC was considered wherein it was held :

"In the present case all the courts below including the High Court

concurrently found that the plaintiffs/appellants failed to produce any

evidence to show that the permission, to withdraw the suit was given on the

ground that the suit was bound to fail by reason ot" some formal defect or

there were sufficient grounds for allowing the plaintiffs to institute a

fresh suit in respect of the same subject-matter. The plaintiffs had not

even produced the application which is said to have been filed for

withdrawal of the earlier suit with permission to file a fresh suit on the

same cause of action to show as to what was the formal defect in the

earlier suit by reason of which it was sought to be withdrawn. In these

facts and circumstances no case for fresh institution of suit on the same

cause of action and for the same relief after the withdrawal of the earlier

suit was made out by the plaintiffs/ appellants in accordance with the

provisions of clause (3) of Order 23 Rule 1 of the Code."

Recently in the case of Executive Officer Arthaneswarar Temple v. R.

Sathyamoorthy & Ors., [1999] 3 SCC 115 this Court restated the general

principles for dealing with the applications under Order XXIII Rule 1 CPC

in the following words :

"Various High Courts have rightly 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 appellant-plaintiff 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."

The question for consideration in the present case is whether the High

Court has exercised the discretion vested under Order XXIII Rule 1(3) CPC

on consideration of matters relevant for exercise of such power. On perusal

of the impugned order it is clear to us that the learned judge has not

considered the matter in its proper perspective while allowing the prayer

of the plaintiff for permission to withdraw the suit with leave to file a

fresh suit. The order is vitiated on account of noon-application of mind to

the relevant aspects of the matter. This position is clear from some

observations in the impugned order which are extracted herein below :

"But one fact situation has to be remembered in this case, viz., that it

was the appellants who succeeded in the trial court in obtaining a decree

and in the appeal against such decree by the respondents, which was partly

allowed, the appellate court found that the pathway was common to both the

parties, but the right was not gone into, title was not determined, in such

a situation withdrawal of the suit at the appellate stage although it may

amount to withdrawal or nullification of the appellate court's order, still

not hurt any part other than the withdrawing plaintiffs, because they are

also having the right to use the common pathway and the decree preventing

installation of the machinery is nullified. Therefore the contention, that

withdrawal will prejudice the Respondents, has no basis. The apprehended

prejudice can be safeguarded by keeping the right to use the pathway by

both the parties till the disposal of the suit.

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......In view of this settled position, it is appropriate to permit

withdrawal of the suit with a liberty to file a fresh suit for declaration

of title which they ought to have done at the initial stage. By withdrawal,

the Respondents should not be deprived of the benefit of usage of that

passage till the final adjudication. If there are valid defences, they can

raise all such defences."

From the above it appears that the approach of the High Court was that the

plaintiff should have prayed for declaration of title which they had

omitted to include in the plaint. It was for the plaintiffs to frame their

suit in any form as advised. If they felt that there was a cause of action

for declaration of their title to the suit property they could have made a

prayer in that regard. If they felt that a declaration of their right to

exclusive user of the pathway was necessary they should have framed the

suit accordingly. One the other hand the plaintiffs merely sought a decree

of injunction permanently restraining the defendants from disturbing their

right of user of the property. From the facts and circumstances of the case

as emanating from the judgments of the trial court and the first appellate

court it is clear that the plaintiffs realised the weakness ia the claim of

exclusive right of user over the property and in order to get over the

findings against them by the first appellate court they took recourse of

Order XXIII Rules 1(3) CPC and filed the application for withdrawal of the

suit with leave to file fresh suit. The High Court does not appear to have

considered the relevant aspects of the matter. Its approach appears to have

been that since the interest of the defendants can be safeguarded by giving

them permission for user of the pathway till adjudi-cation of the

controversy in the fresh suit to be filed, permission for withdrawal of the

suit as prayed for can be granted. Such an approach is clearly erroneous.

It is the duty of the Court to feel satisfied that mere exist proper

grounds/reasons for granting permission for withdrawal of the suit with

leave to file fresh suit by the plaintiffs and in such a matter the

statutory mandate

s not complied by rnerely stating that great of

permission will not prejudice the defendants. In case such permission is

granted at appellate or second appellate stage prejudice to defendant is

writ large as he loses the benefit of the decision in his favour in the

lower court.

For the reasons discussed in the foregoing paragraphs we have no hesitation

to hold that the impugned order is unsustainable, Accordingly the appeal is

allowed with cost. The order of the High Court dated 21.8.1998 granting

permission for withdrawal of the suit with permission to file fresh suit is

set aside. The High Court will now proceed to dispose of the second appeal

in accordance with law.