Anil Kumar Singh vs Vijay Pal Singh .

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 20007 OF 2017 (ARISING OUT OF SLP (C) No.16749 of 2010)

Anil Kumar Singh ...Appellant(s)

VERSUS

Vijay Pal Singh & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the plaintiff against the final

judgment and order dated 28.05.2010 passed by the High

Court of Judicature at Allahabad, Lucknow Bench, Lucknow Signature Not Verified Digitally signed by in Writ Petition No. 5453(M/S) of 2008 whereby the High SHASHI SAREEN Date: 2017.11.30 15:51:50 IST Reason:

Court allowed the petition filed by respondent No.1 herein and

set aside the order dated 14.08.2007 passed by the Additional 2

Civil Judge (Jr. Division) I, Hardoi in R.S. No.271 of 2006 and

order dated 05.08.2008 passed by the Additional District

Judge-III, Hardoi in C.R. No.63 of 2007.

3) In order to appreciate the issues arising in the case, it is

necessary to set out the facts infra. The facts set out

hereinbelow are taken from the SLP paper book.

4) The appellant is the plaintiff whereas respondent Nos.1 to

4 are defendant Nos.1 to 4 and respondent No.5 is plaintiff

No.2 as proforma respondent.

5) The dispute in this case is essentially between the

appellant and respondent Nos.1 to 4 and relates to a land

bearing number 629-A/0.0320 Hect. and 629-B/1.5820 hect.

situated in village - Asyoli Pargana, Bangar, Tehsil and District

Hardoi (UP) (hereinafter referred to as "suit land”).

6) The suit land claimed to be originally belonged to one

Shri Jinta s/o Dhamma. He sold it to two persons - Abhishek

Singh and Ajit Pratap Singh. Abhishek Singh then claimed to

have sold his half share to the appellant on 25.02.2003

whereas Ajit Pratap Singh had already sold his half share to

one Khanulal Mishra on 15.11.2000. Khanulal then claimed to

have sold his 1/4th share out of his share to the appellant and

remaining half share to Ajit Pratap Singh on 04.06.2003. In 3

this way, the appellant claimed to become the owner of the

suit land to the extent of 3/4 th and remaining 1/4th fell to the

share of Ajit Pratap Singh. The mutation of the names of the

owners of the suit land on their respective shares was

accordingly claimed to have been done.

7) The appellant claimed to be doing business of making

brick kiln on the suit land after purchase of the suit land in

partnership with respondent No.5 under the name - M/s

Sushma Brick Field.

8) In May 2006, the appellant (plaintiff) filed a suit being

Civil Suit No.271/2006 in the Court of First Additional Civil

Judge, Hardoi and claimed permanent injunction restraining

respondent No. 1 from interfering in his possession over the

portion of the suit land. The appellant also applied for grant

of temporary injunction under Order XXXIX Rules 1 and 2 of

the Code of Civil Procedure, 1908 (hereinafter referred to as

“the Code”) against respondent No. 1 from interfering in his

possession over the portion of the suit land which he claimed

to have purchased.

9) On 31.05.2006, the Trial Court granted ex-parte

temporary injunction restraining respondent No.1 from

interfering in appellant's possession over the portion of the 4

suit land as claimed and issued notice of the suit and the

application made for grant of temporary injunction to

respondent No.1. The appellant, in the meantime, also applied

for police protection to ensure that order dated 31.05.2006 is

not violated by respondent No.1 which was granted on

12.07.2006.

10) In the meantime, parties claimed to have entered into a

compromise wherein respondent No.1 agreed not to interfere

in appellant's possession. The appellant accordingly filed an

application under Order XXIII Rule 1 to withdraw the suit.

Respondent No.1 opposed the application. By order dated

14.08.2007, the Trial Court allowed the application and

permitted the appellant to withdraw the suit subject to

payment of cost of Rs.350/- payable to respondent No.1

(defendant No.1). The appellant's suit was accordingly

dismissed as withdrawn. The order reads as under:

“Case was called out. The parties are present. The object of 61 C2 has been field by the O.P. against the 56C2, let the same be included with record. Heard. The application is returned on costs of Rs.350/- with the condition that there shall be restriction on plaintiff to bring any other further suit regarding the subject matter of present case on this cause of action. The objections 61C2 stands disposed of accordingly.

Let the case be consigned to record room after necessary proceeding.”

11) Respondent No.1 felt aggrieved and filed revision under 5 Section 115 of the Code before the Additional District Judge,

Hardoi. By order dated 05.08.2008, the Additional District

Judge dismissed the revision and upheld the order of the Trial

Court.

12) Respondent No.1 felt aggrieved and filed writ petition

(W.P. No.5453/2008) in the High Court at Allahabad against

the order of the Additional District Judge under Article 227 of

the Constitution of India. By order dated 28.05.2010, the High

Court allowed the respondent's writ petition, set aside the

orders of Additional District Judge and the Trial Court and

also directed the appellant (plaintiff) to place respondent No.1

(defendant No.1) in possession of the suit land.

13) It is against this order, the plaintiff felt aggrieved and

filed this appeal by way of special leave in this Court.

14) Heard Mr. Pradeep Kant, learned senior counsel for the

appellant and Mr. Anurag Kishore, Mr. Nikhil Jain and Mr.

Rajesh Kumar, learned counsel for the respondents.

15) Having heard the learned counsel for the parties and on

perusal of the record of the case, we are constrained to allow

the appeal, set aside the impugned order and restore the

orders of the Trial Court and the Revision Court.

16) The short question, which arose for consideration before 6

the High Court in the writ petition filed by defendant No.1

(respondent No.1 herein) was whether the two Courts below

were justified in allowing the application filed by the appellant

(plaintiff) under Order XXIII Rule 1 of the Code and thereby

justified in permitting the appellant (plaintiff) to withdraw the

suit.

17) In other words, the only question, which the High Court

was called upon to examine in the writ petition, was whether

the appellant's (plaintiff’s) application filed under Order XXIII

Rule 1 of the Code praying for permission to withdraw the suit

was rightly allowed by the Trial Court or not.

18) Order XXIII Rule 1, which is relevant to decide the

question, reads as under:

“Order XXIII Rule 1

1. Withdrawal of suit or abandonment of part of claim-

(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.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

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(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 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.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.”

19) Reading of Order XXIII Rule 1 would go to show that the

plaintiff has a right to file an application to abandon his suit

or part thereof at any time after its filing. However, if the

permission to withdraw the suit, whether full or part thereof is

granted under Rule 1(3), then the plaintiff would be granted

liberty to institute a fresh suit on terms as the Court may

deem fit and proper to impose on the plaintiff in respect of the

same subject matter of the suit or part thereof. 8

20) If the permission to withdraw the suit is granted under

sub-rule(1) of Rule 1 read with sub-rule (4)(a) or (b) then in

such event, the plaintiff would only be liable to pay cost to the

defendant. However, in such situation, he is precluded from

filing a fresh suit in respect of the same subject matter or part

thereof.

21) Sub-rule (5) of Rule 1 says that, if there are more than

one plaintiff then unless all the plaintiffs give consent to

withdraw the suit, the permission to withdraw the suit cannot

be granted under sub-rule (1) or (3).

22) Coming to the facts of the case on hand, we find that the

appellant (plaintiff) had applied for withdrawal of his suit

under Order XXIII Rule 1. The Trial Court acceded to the

prayer and accordingly granted permission to the appellant to

withdraw the suit on payment of cost of Rs.350/- to the

defendants. This the Trial Court did by taking recourse to the

powers conferred under Order XXIII sub-rule (4)(a) of Rule 1.

23) The effect of this grant of permission to the appellant was

that though he was allowed to withdraw the suit but was not

permitted to file a fresh suit on the same subject matter. Since

only one person had filed the suit and, therefore, sub-rule (5)

of Rule 1 was not attracted.

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24) In our considered opinion, when the plaintiff files an

application under Order XXIII Rule 1 and prays for permission

to withdraw the suit, whether in full or part, he is always at

liberty to do so and in such case, the defendant has no right

to raise any objection to such prayer being made by the

plaintiff except to ask for payment of the cost to him by the

plaintiff as provided in sub-rule (4).

25) The reason is that while making a prayer to withdraw the

suit under Rule 1(1), the plaintiff does not ask for any leave to

file a fresh suit on the same subject matter. A mere

withdrawal of the suit without asking for anything more can,

therefore, be always permitted. In other words, the defendant

has no right to compel the plaintiff to prosecute the suit by

opposing the withdrawal of suit sought by the plaintiff except

to claim the cost for filing a suit against him.

26) However, when the plaintiff applies for withdrawal of the

suit along with a prayer to grant him permission to file a fresh

suit on the same subject matter as provided in sub-rule (3) of

Rule 1 then in such event, the defendant can object to such

prayer made by the plaintiff. In such event, it is for the Court

to decide as to whether the permission to seek withdrawal of

the suit should be granted to the plaintiff and, if so, on what 10

terms as provided in sub-rule (3) of Rule 1.

27) Now coming to the facts of the case, we are of the

considered opinion that the Trial Court and the Revision Court

(A.D.J) were justified in permitting the appellant (plaintiff) to

withdraw the suit under sub-rule (1) of Rule 1. In other

words, since the appellant had applied for withdrawal of the

suit under Order XXIII Rule 1, the Trial Court was justified in

permitting withdrawal of the suit subject to the appellant

paying cost of Rs.350/- to respondent No.1 (defendant No.1).

Such order, in our view, was in conformity with sub-rule (3) of

Rule 1 and was rightly upheld by the Revision Court.

28) The High Court, however, committed jurisdictional error

in allowing the defendant's writ petition by finding fault in the

orders of the Trial Court and Revision Court and giving

directions to the plaintiff to place defendant No.1 in

possession of the suit land without there being any basis

whatsoever.

29) As mentioned above, the High Court should have seen

that the scope of writ petition was confined to examine the

question as to whether the Trial Court and Revision Court

were justified in allowing the application filed by the plaintiff

under Order XXIII Rule 1 of the Code and to decide this 11

question, the High Court should have confined its inquiry to

examine as to whether the requirements of Order XXIII Rule 1

were complied with or not but not beyond it.

30) There was, therefore, no justification on the part of the

High Court to have travelled in the issues relating to the grant

of injunction in relation to the suit land and give direction to

the appellant (plaintiff) to place respondent No. 1 in

possession of the suit land.

31) The High Court should have seen that the issue of grant

of injunction was not the subject matter of the writ petition

and, therefore, it had nothing to do with the question of

withdrawal of the suit and secondly, the withdrawal of a suit

was governed by Order XXIII Rule 1 of the Code whereas the

injunction was governed by Order XXXIX Rules 1 and 2 of the

Code. Both operate in different spheres. That apart, the

defendant did not challenge the ex-parte grant of injunction

order in appeal under Order XLIII Rule 1(r) and nor contested

it before the Trial Court. It was only in these two forums, the

issue of injunction could be considered by the Courts but not

in present proceedings which, as mentioned above, were

confined only to the question of withdrawal of suit and

nothing else.

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32) In the light of foregoing discussion, we are of the

considered opinion that the Trial Court and the Revision Court

were justified in permitting the appellant (plaintiff) to withdraw

the suit whereas the High Court was not right in setting aside

the orders of the Revision Court and the Trial Court and giving

directions to place defendant No.1 in possession of the suit

land.

33) We, however, make it clear that defendant No.1 would be

at liberty to raise issues relating to his ownership and

possession in relation to the suit land in appropriate

proceedings in accordance with law.

34) In view of foregoing discussion, the appeal thus succeeds

and is allowed. Impugned order is set aside and the orders of

the Trial Court and the Revision Court are restored.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE]

New Delhi;

November 30, 2017 13

ITEM No. 1501 Court No. 12 SECTION XI (For Judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CIVIL APPEAL NO. OF 2017 @ SLP © NO. 16749 OF 2010

ANIL KUMAR SINGH Appellant(s)

VERSUS

VIJAY PAL SINGH AND ORS. Respondent(s)

Date : 30.11.2017 This matter was called on for pronouncement of judgment today.

For Appellant(s) Mr. Sunil Kumar Jain, Adv.

Mr. Sanjay Kumar, Adv.

Mr. Kaushik Choudhary, Adv.

Mr. Punya Garg, Adv.

Mr. Divyanshu Sahay, Adv.

Mr. Abhishek Jain, Adv.

For Respondent(s) Mr. Rajesh Kumar, Adv.

Mr. Nikhil Jain, Adv.

Mr. Anurag Kishore, Adv.

Hon'ble Mr. Justice Abhay Manohar Sapre pronounced the judgment of the Bench comprising

Hon'ble Mr. Justice R.K.Agrawal and His Lordship.

Leave granted.

The appeal is allowed in terms of the signed reportable judgment.

(Shashi Sareen) (Saroj Kumar Gaur) AR-cum-PS BRANCH OFFICER)

(Signed reportable judgment is placed on the file)