As per case facts, Reena Sharma initially filed a suit for possession, which the trial court dismissed after finding Sugham Bhagat to be the absolute owner based on a valid ...
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. : 10 of 2025
Reserved on 20.03.2026
Decided on : 06.04.2026
Sugham Bhagat ….Appellant.
Versus
Reena Sharma & another ...Respondents
_________________________________
Coram:
The Hon’ble Mr. Justice Romesh Verma. Judge.
Whether approved for reporting?
1
For the appellant Mr.Sushant Vir Singh, Advocate.
For the respondents Mr.Vishal Mohan, Sr. Advocate,
with Mr. Praveen Sharma,
Advocate for respondent No.1.
__________________________________________
Romesh Verma, Judge
The present Regular Second Appeal arises out of
the judgment and decree as passed by the Additional
District Judge, Palampur, District Kangra, H.P.dated
28.09.2024, whereby the appeal and application under the
provisions of Order 23 Rule 1 of C.P.C filed by the present
respondent were allowed and the judgment and decree as
passed by the learned Civil Judge , Palampur, Distt. Kangra
was set-aside.
2. The brief facts of the case are that the
respondent/plaintiff filed a suit for possession by way of
1
Whether reporters of Local Papers may be allowed to see the judgment?
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ejectment against the present appellant in the Court of
learned Civil Judge, Palampur, District Kangra, H.P. on
20.06.2011.
3. The facts of the case are that the plaintiff is the
owner of the house of single story, slate covered
comprising of 6 rooms kitchen veranda, bath room and
store which is bounded by house of Anu Sharma on north
side link road to residence of MM Bhagat on the southern
side residence of M M Bhagat on eastern side and on
western side Nala road Ghuggar, situated at Mohal and
Mouza Ghuggar, Tehsil Palampur, District Kangra, H.P. It
was averred that house, as detailed, is exclusively owned
by the plaintiff after the death of her father Rajinder Mohan
and defendant No.2 has got no right, title and interest on
the same. It is further averred that defendant No.1 was
inducted as tenant on monthly rent of Rs.800/- of two
rooms and kitchen marked as R1, R2 and K1 in the above
said house by the father of plaintiff and after the death of
the father of plaintiff, defendant No.2 is tenant under the
plaintiff on monthly rent of Rs.800/- per month.It is further
averred that she is residing in a rented residential
accommodation, and now requires the aforesaid suit
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property for her own residence. Further it is averred that
she requested the defendant No.1 to vacate her room but he
prolonged the matter on one pretext or other. Thereafter
vide legal notice dated 17.06.2010, she terminated the
tenancy of defendant No.1 and despite that defendant No.1
did not vacate the house and sent a false reply. It is further
averred that defendant No.2 has forcibly taken the
possession of four rooms in the last week of December,
2010. It is further averred that defendant No.2 is residing
with her family at Jalandhar (Punjab) for the last 5 years
and at present the plaintiff has apprehension that
defendant No.2 may dismantle the existing structure and
will also alter the nature of the same . Further it is averred
that defendant No.2 may despite having no right title or
interest has taken forcible possession of the house.
4. The suit was contested by the defendants by
raising various preliminary objections with regard to
valuation, maintainability and estoppel etc. It was averred
that defendant No.2 became the owner in possession of the
suit property after the death of her father Rajinder Mohan
Bhagat on 25.2.2006 on the basis of a Will which was
executed and registered on 26.09.2002 .It is averred that she
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got married on 29.10.2007 and after the death of her father,
she became full owner of the same. She stated that
defendant No.1 was inducted by her and she was receiving
the rent from defendant No.1 and there is no dispute
between her and defendant No.1 regarding the rent. Further
it is averred that defendant No.1 is in possession of two
rooms and she has claimed that in the last days of her
father, she was residing with him. All the averments as
made in the plaint were refuted and it was prayed that suit
filed by the plaintiff may be ordered to be dismissed.
5. The plaintiff filed replication,wherein the
averments as made in the plaint were reiterated.
6. The learned trial Court framed the issues on
19.02.2014 in the following manner:
1. Whether the plaintiff is entitled to the relief of
possession of room R3,R2 and K1, as prayed for?
OPP
2.Whether the plaintiff is entitled for the relief of
possession of room R3 to R6 illegally and forcibly
occupied by defendant No.2, as prayed for?OPP
3.Whether the suit is not maintainable in present
form ?OPD.
4.Whether the suit is improperly valued for the
purpose of court fee and jurisdiction? OPD.
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5.Whether the plaintiff is estopped by her and
conduct from filing the present suit?OPD.
6. Whether deceased Rajinder Mohan Bhagat
has executed legal and valid Will dated
26.9.2002 in favour of defendant No.2, if so, its
effect?OPD
7.Whether defendant No.2 has become absolute
owner of the suit property?OPD.
8.Whether defendant No.1 is entitled to
possession of the suit land as tenant being
inducted by defendant No.2 on payment of rent,
as alleged?OPD.
9.Relief.
7. Learned Trial Court directed the respective
parties to adduce evidence in support of their contention
and finally vide its judgment and decree dated 15.07.2017,
dismissed the suit as filed by the plaintiff/respondent.
8. Feeling dissatisfied the plaintiff/respondent
preferred an appeal under Section 96 of Civil Procedure
Code in the Court of learned Additional District Judge,
Palampur, District Kangra, H.P. on 09.10.2017.
9. During the pendency of the appeal before the
First Appellate Court, the appellant filed an application
under Order 23 Rule 1 read with Section 151 C.P.C for
withdrawal of the suit. The learned First Appellate Court
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vide its judgment dated 28.09.2024 allowed the appeal as
well as application under Order 23 Rule 1 of C.P.C and
consequently, the judgment and decree dated 15.07.2017
passed by the learned Civil Judge Palampur, Disrict Kangra
in Civil Suit No. 140/2011, titled as Reena Sharma vs. Shyam
Singh Parmar and another was ordered to be set-aside and
the suit of the plaintiff was permitted to be withdrawn.
10. Feeling dissatisfied, the defendant has
approached this Court by filing Regular Second Appeal. It is
contended by the learned counsel for the appellant Mr.
Sushant Vir Singh Thakur that the First Appellate Court has
erred by allowing the appeal and application under Order 23
Rule 1 C.P.C in contrast to the various judgments as passed
by the Hon’ble Apex Court, whereby the withdrawal of the
suit that too at the appellate stage is not permissible, more
so when right has accrued to the opposite party after the
passing of the decree. He has further submitted that the
learned First appellate Court without assigning any reasons
and without adhering to the principles of Order 23 Rule 1
C.P.C allowed the application for the withdrawal of the suit.
He has submitted that though the present respondent could
have withdrawn the appeal, however, the suit which was
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finally decided/adjudicated by the competent court of law
on merits could not have been permitted to be withdrawn.
11. On the other hand, Mr. Vishal Mohan, learned
Senior Advocate, assisted by Mr. Praveen Sharma, Advocate
appearing for respondent No.1 has defended the judgment
as passed by First Appellate Court and has submitted that
on account of the subsequent events, during the pendency
of the appeal, suit land/property stands partitioned and by
way of partition, the land comprised in Khasra No. 820/1
measuring 0-01-92 hectares has been allotted to her vide
order dated 25.06.2019, passed in partition case No. 4/2019
by the Assistant Collector First Grade Palampur. Earlier the
suit land/property was joint between her and the defendant
and since now, the suit land stands partitioned and the suit
filed by her may fail on account of the formal defect.
Therefore, the First Appellate Court has rightly exercised
the jurisdiction.
12. I have heard the learned counsel for the parties
and have gone through the record of the case file carefully.
13. With the consent of the parties, the present
appeal is finally heard at the admission stage.
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14. The respondent/plaintiff filed a suit for
possession by way of ejectment against the defendants
Shyam Singh Parmar and Sugham Bhagat in the Court of
Civil Judge, Palampur, District Kangra. In the present
appeal, only defendant No.2 Sugham Bhagat has
approached this Court and defendant No.1 Shyam Singh
has chosen not to file any appeal against the judgment as
passed by the First Appellate Court. After framing of the
issues by the learned trial Court, the respective parties led
their evidence and finally the learned trial Court came to the
conclusion that the plaintiff is not entitled for the relief of
possession of the suit property. The learned Civil Judge,
Palampur vide deciding issues No. 6 and 7 with respect to
the execution of the Will dated 26.9.2002, in favour of
defendant No.2 that whether defendant No.2 has become
absolute owner of the property, came to the conclusion that
there was a valid will executed by Rajinder Mohan in favour
of defendant No.2 vide Will dated 26.09.2002 and on the
basis of the same, defendant No.2 namely Sugham Bhagat
has become absolute owner of the suit property. The
judgment as passed by the learned Civil Judge clearly reveals
that there is a categorical finding by the learned trial Court
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that though the plaintiff is not entitled for decree of
possession, however, defendant No.2 was able to establish
that a valid will was executed by deceased Rajinder Mohan
in her favour and on the basis of same she became absolute
owner of the suit property.
15. As rightly pointed out by Sh. Sushant Vir Singh
Thakur, Advocate, for the appellant that the rights of
defendant No.2 were crystallized while deciding issues No.
6 and 7 by learned Civil Judge, Palampur, District Kangra.
Though, ultimately suit filed by the plaintiff was dismissed,
however, the rights of defendant No.2 was decided on the
strength of the Will dated 26.9.2002.
16. It is contended by the learned counsel for the
appellant that once the learned trial Court adjudicated and
determined the rights of the respective parties, especially of
defendant No.2/appellant by holding that there is a valid
Will in her favour on behalf of deceased Rajinder Mohan
dated 26.09.2002 she has become absolute owner of the suit
property, therefore, The impugned judgment as passed by
the learned First Appellate Court is not sustainable.
17. Learned counsel for the appellant has
submitted that as per provisions of Order 23 Rule 1 (3),
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withdrawal of the suit can be allowed where the court is
satisfied that suit must fail by reason of some formal defect
or that there are sufficient grounds for allowing the plaintiff
to institute a fresh suit for the subject matter of the suit or
part of a claim. However, in the case at hand, the
plaintiff/respondent has failed to make out a case that what
is formal defect in the suit on the basis of which the
application under Order 23 Rule 1 C.P.C was filed. He has
further submitted that the learned First Appellate Court has
failed to assign and give plausible reason for allowing the
application for the withdrawal of the suit. He has urged that
there is no specific reason assigned by the learned First
Appellate Court and merely on the basis of averments as
made in the application that the partition has taken place,
plaintiff was permitted to withdraw the suit.
18. Mr. Sushant Vir Singh, learned counsel for the
appellant has submitted that once the rights of the parties
were crystallized by the judgment and decree, as passed by
the learned Civil Judge, Palampur, then the appellate Court
has erred by allowing the application of the
plaintiff/respondent to withdraw the suit. He has
contended that at the most, the present respondent could
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have withdrawn the appeal, which was filed before the First
Appellate Court, however, after final adjudication of the
suit that too at the appellate stage, the suit could not have
been withdrawn. In order to substantiate his contentions,
the learned counsel for the appellant has relied upon the
judgment of the Hon’ble Supreme Court held in Executive
Officer, Arthanareswarar Temple Vs. R. Sathyamoorthy and
Others (1999)3 SCC 115, which reads as under:-
14. It is true that in a large number of cases
decided by the High Courts, 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
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 set nullified, such permission
for withdrawal of the suit should not be
granted, (See Thakur Singh v. A. Achuta Rao,
Kedar Nath v. Chandra Kiran
Vidydhar Dube v.
HarcharaN Charles Sanuel Vs. Board of
Trustees; Lala Chetram v. Krishnamoni,
Jubedan Begum v. Sekhawat Ali Khan; Ram
Dhan v. Jagat Prasad Sethi). In the present case,
the learned Judge felt that no such finding in
favour of the Commissioner was being nullified
by the withdrawal of the OP at the stage of
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revision and therefore the withdrawal of OP
was permissible.
19 The Hon’ble Supreme Court has held in R.
Rathinavel Chettiar and another Vs. V. Sivaraman and
others (1999) 4 SCC 89
8.The question in the present case is, however,
a little different. If the suit has already been
decreed or, for that matter, dismissed and a
decree has been passed determining the rights
of the parties to the suit, which is under
challenge in an appeal, can the decree be
destroyed by making an application for
dismissing the suit as not pressed or
unconditionally withdrawing the suit at the
appellate stage. It is this question which is to be
decided in this appeal.
9.Every suit, if it is not withdrawn or
abandoned, ultimately results in a decree as
defined in Section 2(2)of the Code of Civil
Procedure. This definition, so far as it is
relevant, is reproduced below:-
"2(2). "decree" means the formal expression of
an adjudication which, so far as regards the
Court expressing it, conclusively determines
the rights of the parties with regard to all or any
of the matters in controversy in the suit and
may be either preliminary or final. It shall be
deemed to include the rejection of a plaint and
the determination of any question within
Section 144, but shall not include-
(a) any adjudication from which an appeal lies
as an appeal from an order, or
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(b) any order of dismissal for default.
Explanation.- A decree is preliminary when
further proceedings have to be taken before the
suit can be completely disposed of. It is final
when such adjudication completely disposes of
the suit. It may be partly preliminary and partly
final."
10.Thus a "decree" has to have the following
essential elements, namely,
(i) There must have been an adjudication in a
suit.
(ii) The adjudication must have determined the
rights of the parties in respect of, or any of the
matters in controversy.
(iii) Such determination must be a conclusive
determination resulting in a formal expression
of the adjudication.
11.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.
12.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
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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.
16.This decision was considered by the Division
Bench of the same High Court in Vidhydhar
Dube and others vs. Har Charan and others, AIR
1971 Allahabad 41 and was approved. It was held
that the right of the plaintiff to withdraw the
suit at the appellate stage is not an absolute
right but is subject to rights acquired by
defendant under the decree. It was also
observed that withdrawal may be permitted if
no vested or substantive right of any party to
the litigation is adversely affected.
17.Kedar Nath's case (supra) was followed
inKanhaiya and others vs. Mst. Dhaneshwari
and another, AIR 1973 Allahabad 212, in which
it was again laid down that the plaintiff does
not have an unqualified or unfettered right
under Order 23 Rule 1(1) C.P.C . to withdraw the
suit at the appellate stage when rights have
accrued to the respondents under the decree.
18.Both these decisions, namely, the decision
of the Allahabad High Court inKedar Nath's
case and Kanhaiya's case were followed by the
Andhra Pradesh High Court in Thakur Balaram
Singh vs. K. Achuta Rao and others, 1977 (2)
A.P.L.J. 111, and it was held that though the
plaintiff has an absolute right to withdraw his
suit before the passing of a decree under Order
23 Rule 1(1) C.P.C . but permission to withdraw
the suit at the appellate stage would be refused
if it would have the effect of prejudicing or
depriving any right which became vested in
the respondents or had accrued to them by
reason of the findings recorded by the trial
court.
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22.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 reasons are shown that the withdrawal
would not affect or prejudice anybody's vested
rights. The impugned judgment of the High
Court in which a contrary view has been
expressed cannot be sustained.
20. Similarly, the Hon’ble Supreme Court has held
in Sneh Gupta Vs. Devi Sarup and Others (2009)6, SCC 194
33. It is also well known that a suit cannot be
withdrawn by a party after it acquires a
privilege. In R. Ramamurthy Iyer v. Raja V.
Rajeswara Rao this Court held :(SCC pp.729-
30,para 12)
"12. Coming back to the question of
withdrawal of a suit in which the provisions of
Sections 2 and 3of the Partition Act have been
invoked we find it difficult to accede to the
contention of the appellant that the suit can be
withdrawn by the plaintiff after he has himself
requested for a sale under Section 2of the
Partition Act and the defendant has applied to
the court for leave to buy at a valuation the
share of the plaintiff under Section 3. In
England the position about withdrawal has
been stated thus, in the Supreme Court
Practice, 1970 at p. 334:
"Before Judgment.-- Leave may be
refused to a plaintiff to discontinue the action
if the plaintiff is not wholly dominus litis or if
the defendant has by the proceedings obtained
an advantage of which it does not seem just to
deprive him."
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As soon as a shareholder applies for leave to
buy at a valuation the share of the party asking
for a sale under Section 3of the Partition Act he
obtains an advantage in that the court is bound
thereafter to order a valuation and after
getting the same done to offer to sell the same
to such shareholder at the valuation so made.
This advantage, which may or may not fulfill
the juridical meaning of a right, is
nevertheless a privilege or a benefit which the
law confers on the shareholder. If the plaintiff
is allowed to withdraw the suit after the
defendant has gained or acquired the
advantage or the privilege of buying the share
of the plaintiff in accordance with the
provisions of Section 3(1) it would only enable
the plaintiff to defeat the purpose of Section
3(1) and also to deprive the defendant of the
above option or privilege which he has
obtained by the plaintiff initially requesting
the court to sell the property under Section
2 instead of partitioning it. Apart from these
considerations it would also enable the
plaintiff in a partition suit to withdraw that
suit and defeat the defendant's claim which,
according to Crump J., cannot be done even in
a suit where the provisions of the Partition
Act have not been invoked."
34.Yet again inR. Rathinavel Chettiar v. V.
Sivaraman[(1999) 4 SCC 89], this Court, stated
the law, thus :(SCC pp.96-97, para 22)
"22. 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 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 affect or
prejudice anybody's vested rights. The
impugned judgment of the High Court in
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which a contrary view has been expressed
cannot be sustained."
35. A right to withdraw a suit in the suitor
would be unqualified, if no right has been
vested in any other party. [See Bijayananda
Patnaik v. Satrughna Sabu and Hulas Rai Baij
Nath v. Firm K.B. Bass & Co.
21. The Hon’ble Supreme Court has held in Avenue
Supermarts Private Limited Vs. Nischint Bhalla and Others
(2016)15 SCC 411 which reads as under:
19. In R. Rathnivel, this Court has considered
the question as to whether at a stage where the
rights of the parties are crystallized can be
divested of the rights under the decree simply
because of withdrawal of the suit at the
appellate stage or not. This Court has held as
follows:-
“12. 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
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either in appeal or in revision have to be
allowed to have a full trial on merits.”
This Court after referring to the various
decisions of the High Courts have come to the
conclusion 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.
In para 12 Page13 22, this court held as under:-
“22. 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 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 affect or
prejudice anybody’s vested rights. The
impugned judgment of the High Court in
which a contrary view has been expressed
cannot be sustained.”
21) In Sneh Gupta, this Court has held that a
right to withdraw a suit in the suitor would be
unqualified, if no right has been vested in any
other party.
22. The Hon’ble Apex Court in the aforesaid
judgments has held that when the rights of the parties are
crystallized and unless the decree is reversed, the parties
cannot be divested of their rights and of the decree. Since
the withdrawal of the suit at the appellate stage, if allowed
would have the effect of destroying or nullifying the decree
affecting the rights of the parties, which came to be vested
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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.
23 The Hon’ble Apex Court has specifically held
that where the decree passed by the learned Court is
challenged in appeal, it would not be open to the plaintiff at
that stage to seek withdrawal of the suit so as to destroy the
decree. The rights which have come to be vested in the
parties to the suit under the decree cannot be taken away by
the withdrawal of the suit at that stage unless very strong
reasons are shown that the withdrawal would not affect or
prejudice anybody vested rights. Right to withdraw a suit in
the suitor would be unqualified, if no right has been vested
in any other party.
24. In the present case, the issues with respect to
Will and ownership were framed, as issue Nos.6 and 7 and
there is a categorical finding in favour of defendant
No.2/appellant, therefore, the appellant is well within his
right to contend that once the rights of defendant No.2
were crystallized by passing a decree in her favour that
cannot be defeated that too in an appeal by filing an
application under Order 23 Rule 1 and 2 C.P.C . The judgment
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as passed by the First Appellate Court is in contravention to
the judgments as cited (supra) passed by the Apex Court, no
reasons has been assigned by the First Appellate Court for
coming to the conclusion and allowing the application filed
by the plaintiff under the provisions of Order 23 Rule 1 C.P.C.
The First Appellate Court while dealing with the application
in para 15 in a routine manner allowed the application
without assigning any specific and cogent reasons for the
withdrawal of the suit at the appellate stage. In the opinion
of this Court, the method as adopted by the First Appellate
Court is not in consonance with the law laid down by the
Hon’ble Apex Court.
25. It is contended by the learned Senior counsel
for respondent No.1 that the application which was filed by
the plaintiff/present respondent before the First Appellate
Court for the withdrawal of the suit was not contested by
the defendant/present appellant rather a statement was
given by the learned counsel for the defendant that he does
not want to file reply to the application under Order 23 Rule
1 read with Section 151 C.P.C. He has submitted that since
there was no opposition on behalf of the defendant to the
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said application, therefore, the application ought to have
been allowed.
26. To his submissions, learned counsel for the
appellant submits that by merely non filing of the reply to
the application will not give any right to the respondent.
Non filing of the reply or statement as made by the learned
counsel cannot prejudice the rights of the present appellant.
He has submitted that the statement as made by the learned
counsel cannot bind the present appellant since vested
rights of the defendant/appellant were involved in the said
proceedings.
27. In order to strengthen his case with respect to
the submissions, the learned counsel for the appellant has
relied upon the judgment of the Apex Court in Union of
India and others vs. Mohan Lal Likumal Punjabi and others
(2004)3 Supreme Court Cases 628, wherein it was held as
under:
8 We shall first deal with the effect of concession,
if any, made by learned counsel appearing for the
present appellants before the High Court. Closer
reading of the High Court's order shows that the
High Court took the view that in view of the
revocation of the order on 19th December, 1994
and the order passed by the High Court on 11th
January, 1995, no further order could have been
passed under Section 7 of SAFEMA. After having
22 2026:HHC:10478 )
expressed this view, the so-called concession is
recorded. In our view the concession, if any, is
really of no consequence, because the wrong
concession made by a counsel cannot bind the
parties when statutory provisions clearly provided
otherwise. It was observed by Constitution Bench
of this Court Sanjeev Coke Manufacturing
Company v. M/s Bharat Coking Coal Limited
that courts are not to act on the basis of
concession but with reference to the applicable
provisions. The view has been reiterated in
Uptron India Ltd. vs. Shammi Bhan and Central
Council for Research inAyurveda & Siddha and
Another v. Dr. K. Santhakumari. In para 12 of
Central Council's case it w as observed as
follows:
12. "In the instant case, the selection
was made by the Departmental Promotion
Committee. The Committee must have considered
all relevant facts including the inter se merit and
ability of the candidates and prepared the select
list on that basis. The respondent, though senior in
comparison to other candidates, secured a lower
place in the select list, evidently because the
principle of "merit-cum-seniority" had been
applied by the Departmental Promotion
Committee. The respondent has no grievance that
there were any mala fides on the part of the
Departmental Promotion Committee. The only
contention urged by the respondent is that the
Departmental Promotion Committee did not
follow the principle of "seniority- cum-fitness". In
the High Court, the appellants herein failed to
point out that the promotion is in respect of a
"selection post" and the principle to be applied is
"merit-cum-seniority". Had the appellants pointed
out the true position, the learned Single Judge
would not have granted relief in favour of the
respondent. If the learned counsel has made an
23 2026:HHC:10478 )
admission or concession inadvertently or under a
mistaken impression of law, it is not binding on
his client and the same cannot enure to the benefit
of any party."
9 In Uptron (India) Ltd. V. Shammi Bhan
and Anr.(1998 (6) SCC 538), it was held that a
case decided on the basis of wrong concession of
a counsel has no precedent value. That apart, the
applicability of the statute or otherwise to a given
situation or the question of statutory liability of a
person/institution under any provision of law
would invariably depend upon the scope and
meaning of the provisions concerned and has got
to be adjudged not on any concession made. Any
such concessions would have no acceptability or
relevance while determining rights and liabilities
incurred or acquired in view of the axiomatic
principle, without exception, that there can be no
estoppel against statute.
28. The Hon’ble Supreme Court in Asma Lateef and
another Vs. Shabbir Ahmad and others (2024) 4 SCC 696
has held as under:
27. At this stage, we consider it apposite to
take a quick look at Balraj Taneja to examine
the scope of Order 8 Rule 10. Therein, this
Court ruled that a court is not supposed to pass
a mechanical judgment invoking Order 8 Rule
10 CPC merely on the basis of the plaint, upon
the failure of a defendant to file a written
statement. The relevant paragraphs of the
judgment are reproduced below for
convenience: (SCC p. 410, para 29)
"29. As pointed out earlier, the court has
not to act blindly upon the admission of a fact
made by the defendant in his written
statement nor should the court proceed to
pass judgment blindly merely because a
written statement has not been filed by the
defendant traversing the facts set out by the
24 2026:HHC:10478 )
plaintiff in the plaint filed in the court. In a
case, specially where a written statement has
not been filed by the defendant, the court
should be a little cautious in proceeding under
Order 8 Rule 10 CPC. Before passing the
judgment against the defendant it must see to
it that even if the facts set out in the plaint are
treated to have been admitted, a judgment
could possibly be passed in favour of the
plaintiff without requiring him to prove any
fact mentioned in the plaint. It is a matter of
the court's satisfaction and, therefore, only on
being satisfied that there is no fact which need
be proved on account of deemed admission,
the court can conveniently pass a judgment
against the defendant who has not filed the
written statement. But if the plaint itself
indicates that there are disputed questions of
fact involved in the case regarding which two
different versions are set out in the plaint
itself, it would not be safe for the court to pass
a judgment without requiring the plaintiff to
prove the facts so as to settle the factual
controversy. Such a case would be covered by
the expression "the court may, in its
discretion, require any such fact to be proved"
used in sub-rule (2) of Rule 5 Order 8, or the
expression "may make such order in relation
to the suit as it thinks fit" used in Rule 10
Order 8."
No doubt this decision was rendered
considering that the verb used in the provision
is "may", but nothing substantial turns on it.
29. If indeed, in a given case, the defendant
defaults in filing written statement and the
first alternative were the only course to be
adopted, it would tantamount to a plaintiff
being altogether relieved of its obligation to
prove his case to the satisfaction of the court.
Generally, in order to be entitled to a judgment
in his favour, what is required of a plaintiff is
to prove his pleaded case by adducing
evidence. Rule 10, in fact, has to be read
together with Order 8 Rule 5 and the position
seems to be clear that a trial court, at its
discretion, may require any fact, treated as
25 2026:HHC:10478 )
admitted, to be so proved otherwise than by
such admission. Similar is the position with
Section 58 of the Evidence Act, 1872. It
must be remembered that a plaint in a suit is
not akin to a writ petition where not only the
facts are to be pleaded but also the evidence in
support of the pleaded facts is to be annexed,
whereafter, upon exchange of affidavits, such
petition can be decided on affidavit evidence.
Since facts are required to be pleaded in a
plaint and not the evidence, which can be
adduced in course of examination of
witnesses, mere failure or neglect of a
defendant to file a written statement
controverting the pleaded facts in the plaint,
in all cases, may not entitle him to a judgment
in his favour unless by adducing evidence he
proves his case/claim.
29. The Hon’ble Supreme Court in Balraj
Taneja & another vs. Sunil Madan and another (1999)8
SCC 396 has held as under:
36 This suit has been decreed by the Delhi
High Court by the following judgment:- "SUIT
NO. 1124/96 & I.A. No. 4303/96. On the 20th of
September, 1996, Mr. Lalit Kumar, learned
counsel for defendant 1 to 3 sought time to file
written statement and reply. Time was granted
but the written statement and reply have not
been filed. On the 22nd of January, 1997, Mr.
Aseem Mohar for counsel for defendant
appeared and sought time to file vakalatnama
and written statement/reply and the matter
had been adjourned to this date. Today Mr.
Kamal Mehta putting in appearance on behalf
of defandant No.2 and 3 and Balraj Taneja &
Anr vs Sunil Madan & Anr on 8 September,
1999 Indian Kanoon -
http://indiankanoon.org/doc/182831/ 10
represents that Mr. Rajiv Nayar has been
engaged by the second and third defendants
this morning and he seeks time to file written
statement/reply. The defendants are adopting
this tactic only to protract the proceedings and
26 2026:HHC:10478 )
have not filed the written statement and reply
to the application inspite of sufficient
opportunity having been given. Accordingly,
the suit is decreed for specific performance in
favour of the plaintiff and against the
defendants with the directions to the plaintiff
to deposit the balance amount of Rs.3,00,000/-
(Rupees Three Lakhs) in this court within six
weeks from today. If the amount is deposited
within six weeks, it will be open for the
plaintiff to apply for the appointment of a
Commissioner for the execution of the sale
deed. The defendants are also directed to pay
the cost of the suit. February 10, 1997. Sd/-
JUDGE."
37 A perusal of the above judgment will
indicate that the suit had been decreed only
because of the failure of the defendants in
filing the written statement. This exhibits the
annoyance of the Court which is natural as no
Court would allow the proceedings to be
delayed or procrastinated. But this should not
disturb the judicial composure which
unfortunately is apparent in the instant case as
the judgment neither sets out the facts of the
case nor does it record the process of reasoning
by which the Court felt that the case of the
plaintiff was true and stood proved.
38 As will be evident from the facts
set out above, the plaint itself showed a serious
disputed question of fact involved between the
parties with regard to the obtaining of
Certificate (permission) from the Income Tax
Department and its communication by the
defendants to the plaintiff (Respondent No. 1).
Since this question of fact was reflective of the
attitude of the plaintiff, whether he was ready
and willing to perform his part of the contract,
it had to be proved as a fact that the Certificate
(permission) from the Income Tax Department
had not been obtained by the defendants and,
therefore, there was no occasion of sending it
to him. If the pleadings of respondent No. 1
were limited in character that he had pleaded
only this much that the defendants had not
obtained the Certificate (permission) from the
Income Tax Department and had not sent it to
27 2026:HHC:10478 )
him, this fact would have stood admitted on
account of non-filing of the Written Statement
by the defendants. But Respondent No. 1, as
plaintiff, himself pleaded that "defendants
insisted that they had obtained the Certificate
(permission) from the Income Tax Department
and sent it to him". He denied its having been
obtained or sent to him. Non-filing of the
Written Statement would not resolve this
controversy. The plaint allegations, even if
treated as admitted, would keep the
controversy alive. This fact, therefore, had to
be proved by the plaintiff and the Court could
not have legally proceeded to pass a judgment
unless it was established clearly that the
defendants had committed default in not
obtaining the Certificate (permission) from the
Income Tax Department and sending the same
to the plaintiff.
39 The agreement between the
parties was entered into in 1992 and for four
years the plaintiff had kept quiet and not
insisted for the execution of the sale deed in his
favour. When he did raise that question, the
defendants informed him that the certificate
had already been obtained from the Income
Tax Authorities and sent to him.
40. Unfortunately, the High Court did
not consider this fact and proceeded almost
blindly to pass a decree in favour of the
plaintiff merely because Written Statement had
not been filed in the case. Learned Single Judge,
who passed the decree, did not consider any
fact other than the conduct of the defendants
in seeking adjournments of the case for
purposes of filing Written Statement. So also,
the Division Bench did not consider any fact
other than the fact that the defendants had
been trying to prolong the proceedings by
seeking adjournments, and that too, by
changing their counsel. The Division Bench
also took into consideration the fact that the
appeal filed by the defendants against the
decree passed by the Single Judge was beyond
time which again indicated their negligence.
No other fact was taken into consideration and
the decree passed by the Single Judge was
affirmed.”
28 2026:HHC:10478 )
30. The submissions as made by the learned
counsel for the appellant relying upon the judgment of the
Hon’ble Apex Court (supra) establishes that merely failure
on the part of the defendant to file the reply to the
application will not automatically entitle the applicant to
the relief as sought for permission of withdrawal of suit by
the plaintiff/respondent.
31. As held by the Hon’ble Apex Court that before
passing the judgment, it must be seen that even if the facts
set out in the plaint are treated to have been admitted, a
judgment could be possibly passed in favour of the plaintiff
without requiring him to prove any fact mentioned in the
plaint. It is a matter of Court’s satisfaction, therefore, only
on being satisfied that there is no fact which needs to be
proved on account of deemed admission, the Court can
conveniently pass a judgment against the defendant, who
has not filed the written statement but, if the plaint itself
indicates that there are disputed questions of fact involved
in the case regarding which two different versions are set
out in the plaint itself, it would not be safe for the Court to
pass a judgment without requiring the plaintiff to prove the
facts so as to settle the factual controversy.
29 2026:HHC:10478 )
32 This Court is of the opinion that merely on the
basis that the defendant has not filed reply to the
application filed by the plaintiff under Order 23 Rule 1 C.P.C,
no adverse inference can be drawn against her. The
application was filed by the plaintiff and the onus to prove
the ingredients of Order 23 Rule 1 C.P.C were upon the
plaintiff. She has to make out the case within the
parameters of the said provisions of law.
33. Therefore, the contentions of the learned
Senior Counsel for respondent No.1 are not sustainable in
the present case.
34. Learned counsel for the appellant has relied
upon the judgment of the Hon'ble Apex Court in case titled
as H. Siddiqui (dead) By Lrs. vs. A.Ramalingam (2011)4 SCC
240,wherein it has been held as under:
21 The said provisions provide guidelines for
the appellate court as to how the court has to
proceed and decide the case. The provisions
should be read in such a way as to require that
the various particulars mentioned therein
should be taken into consideration. Thus, it
must be evident from the judgment of the
appellate court that the court has properly
appreciated the facts/evidence, applied its
mind and decided the case considering the
material on record. It would amount to
substantial compliance of the said provisions
if the appellate court's judgment is based on
30 2026:HHC:10478 )
the independent assessment of the relevant
evidence on all important aspect of the matter
and the findings of the appellate court are well
founded and quite convincing. It is mandatory
for the appellate court to independently assess
the evidence of the parties and consider the
relevant points which arise for adjudication
and the bearing of the evidence on those
points. Being the final court of fact, the first
appellate court must not record mere general
expression of concurrence with the trial court
judgment rather it must give reasons for its
decision on each point independently to that
of the trial court. Thus, the entire evidence
must be considered and discussed in detail.
Such exercise should be done after
formulating the points for consideration in
terms of the said provisions and the court
must proceed in adherence to the
requirements of the said statutory provisions.
(Vide Sukhpal Singh v. Thakur Kalyan
Singh,Girijanandini Devi v. Bijendra Narain
Choudhary, G. Amalorpavam & Ors. v. R.C.
Diocese of Madurai Shiv Kumar Sharma v.
Santosh Kumari and Gannmani Anasuya & Ors.
v. Parvtini Amarendra Chowdhary.
22 In B.V. Nagesh & Anr. v. H.V. Sreenivasa
Murthy, while dealing with the issue, this
Court held as under: (SCC p. 531,para 4).
4."The appellate Court has jurisdiction
to reverse or affirm the findings of the trial
Court. The first appeal is a valuable right of the
parties and unless restricted by law, the whole
case therein is open for re-hearing both on
questions of fact and law reasons, on all the
issues arising along with the contentions put-
forth and pressed by the parties for decision of
the appellate Court. Sitting as a court of
appeal, it was the duty of the High Court to
deal with all the issues and the evidence led by
the parties before recording its findings. The
first appeal is a valuable right and the parties
have a right to be heard both on questions of
31 2026:HHC:10478 )
law and on facts and the judgment in the first
appeal must address itself to all the issues of
law and fact and decide it by giving reasons in
support of the findings. [Vide Santosh Hazari
vs. Purushottam Tiwari, SCC p.188,para 15 and
Madhukar vs. Sangram, SCC p. 758, para 5).
35. The Hon’ble Apex Court held in B.V.
Nagesh and another vs. H.V. Sreenivasa Murthy
(2010)13 SCC 530, held as under:-
2 The impugned judgment passed by the High
Court arose out of regular first appeal filed
under Section 96CPC. It is the grievance of the
appellants that the High Court, without
adverting to all the factual details and various
grounds raised, disposed of the appeal in a
cryptic manner. In the light of the above
assertion, we verified the impugned judgment
of the High Court. The High Court, after
narrating the pleadings of both parties, without
framing points for determination and
considering both facts and law set aside the
judgment and decree of the trial Court and
modified the same without proper discussion
and assigning adequate reasons.
3.How regular first appeal is to be disposed of
by the appellate Court/High Court has been
considered by this Court in various decisions.
Order XLI of C.P.C. deals with appeals from
original decrees. Among the various rules, Rule
31 mandates that the judgment of the appellate
Court shall state:
a) the points for determination;
b) the decision thereon;
c) reasons for the decision; and -
32 2026:HHC:10478 )
d) where the decree appealed from is reversed
or varied, the relief to which the appellant is
entitled.
4. The appellate Court has jurisdiction to
reverse or affirm the findings of the trial Court.
The first appeal is a valuable right of the parties
and unless restricted by law, the whole case
therein is open for re-hearing both on questions
of fact and law. The judgment of the appellate
Court must, therefore, reflect its conscious
application of mind and record findings
supported by reasons, on all the issues arising
along with the contentions put-forth and pressed
by the parties for decision of the appellate
Court. Sitting as a court of appeal, it was the
duty of the High Court to deal with all the
issues and the evidence led by the parties before
recording its findings. The first appeal is a
valuable right and the parties have a right to be
heard both on questions of law and on facts and
the judgment in the first appeal must address
itself to all the issues of law and fact and decide
it by giving reasons in support of the findings.
[Vide Santosh Hazari vs. Purushottam Tiwari,
SCC p 188, para 15 and Madhukar vs.
Sangram SCC P.758, para 5).
5) In view of the above salutary principles, on
going through the impugned judgment, we feel
that the High Court has failed to discharge the
obligation placed on it as a first appellate Court.
In our view, the judgment under appeal is
cryptic and none of the relevant aspects have
even been noticed. The appeal has been decided
in an unsatisfactory manner. Our careful perusal
of the judgment in the regular first appeal
shows that it falls short of considerations which
are expected from the Court of first appeal.
Accordingly, without going into the merits of
33 2026:HHC:10478 )
the claim of both parties, we set aside the
impugned judgment and decree of the High
Court and remand the regular first appeal to the
High Court for its fresh disposal in accordance
with law.
36. Learned counsel for the appellant submits that
the appeal has been decided by the First Appellate Court
without assigning any reasons and in an unsatisfactory
manner. As has been held by the Hon’ble Supreme Court,
the first appeal is a valuable right of the parties and unless
restricted by the law, the whole case is therein open for
rehearing both on question of facts and law. Therefore, the
judgment of the appellate Court must reflect its conscious
application of mind and record findings supported by
reasons, on all the issues arising along with the contentions
putforth and pressed by the parties for decision of the
Appellate Court. The Appellate Court shall state the points
for determination, the decision there on the reasons for the
decision and where the decree appealed from is reversed or
varied, relief of which the appellant is entitled.
37. In the present case, the said principle has not
been adhered to by the First Appellate Court. The appellant
has been able to establish that right had accrued to her on
34 2026:HHC:10478 )
the question of the validity of Will and there was a categorical
findings by the learned trial Court, therefore, the appeal along
with the suit could not have been permitted to be withdrawn.
Therefore, this Court is of the opinion that the judgment as
passed by the First Appellate Court calls for interference and,
the same is quashed and set aside. After setting aside the
impugned judgment, the application filed by
plaintiff/respondent for withdrawal of suit under order 23
Rule 1 of C P C is dismissed and the appeal is restored to its
original number with direction to the First Appellate Court to
decide the appeal afresh in accordance with law.
38. Consequently the instant appeal is allowed and
the case is remanded back to the Court of First Appellate
Court, who shall decide the appeal afresh on its own merit in
view of the mandate of the Hon’ble Apex Court (supra) and
decide the appeal.
39. Parties are directed to appear before the First
Appellate Court on 16.04.2026.
Records of the learned trial Court be sent back
forthwith.
(Romesh Verma)
Judge
06
th
April 2026 (veena)
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