Court grants permission to the plaintiff to withdraw a partition suit without giving notice to all the contesting defendants, it acts without jurisdiction, as the Court had denied the defendants their lawful right to prosecute the suit by getting transposed as plaintiff
Ajita Debi v. Hossenara Begurn, AIR 1977 Cal 59
A.V.B., AIR 1974 AP 268
A.V.B., 1971 0 APHC 134
A.V.B., 1969 1 APLJ 138
Hulas Rai v. K.B.Bass and Co., AIR 1968 SC 111
Asian Assurance Co. v. Madholal, AIR 1950 Bom 378
Bhupendra Narayan Sinha v. Rajeshwar Prasad, AIR 1931 PC 162
A.V.B., AIR 1920 Mad 732
Comparative Citation:
1986 AIR(AP) 270
JUDGMENT P.A. Choudary, J.
1. One Bangaru Gopalkrishnaiah filed O.S. No. 57 of 1966 on the file of the Subordinate Judge, Narsapur, That suit was for partition and separate possession of his share of the plaint schedule properties which stood alienated in favour of the 8th defendant under a document dt. 11-7-1978. The consideration under that impugned sale was received by the 4th defendant. In the suit filed by Bangaru Gopalakrishnaiah, the appellants herein, were added as the defendants 5 to 7 because these appellants-defendants along with the plaintiff were admittedly entitled to equal shares in the suit properties. The defendants 5 to 7 in an effort to promote their interests have supported in their written statement the claim of the plaintiff for partition of suit properties among the various sharers and claimed their share in them and also sought the cancellation of the alienation of the suit properties in favour of the 8th defendant.
2. The suit developed teething troubles. The first complication was caused by the 4th defendant filling I.A. No. 674 /1970 seeking to have the suit claim compromised in terms of an alleged compromise which the defendants. 5 to 7 opposed . The proposal of the 4 the defendant was, no doubt, in his interests, but not without detriment to the defendants 5 to 7. Added to this complication was the further complication caused by the death of the 8th defendant. The death of the 8th defendant had necessitated bringing on record of his legal representatives. Applications for that purpose were taken out, but not yet ordered. Without adjudicating the above two sets of application the suit cannot be taken up for trial. For disposing of such interlocutory applications, out system of unit accounting adopted by the High Court to assess the work ability of the lower Courts offers only disincentives to the subordinate Courts. All in all, the suit made no progress. All those miscellaneous applications were being posted from time to time for inquiry. When some of those miscellaneous matters were thus posed on 13-9-1976, the 4th defendant , the maternal grand-father of the present appellants, using his vast experience of court-craft accumulated over the years, had brought the plaintiff into the court even without the knowledge of the plaintiff's lawyer and got a memo filed withdrawing the suit itself. No notice of that withdrawal memo, was given to defendants 5 to 7 nor was the plaintiff's lawyer made aware of it. Indeed the plaintiff's lawyer did neither sign the memo, nor was he present in the Court. Everything was done by the grandfather in utmost secrecy. Secrecy, they say, is the badge of fraud. The lower court ought to have suspected something foul. The lower Court ought not to have passed any orders on such a memo, without notice to the defendants, particularly when the main suit was not formally posted before the court on that day for trial. Ignoring these safety precautions, the lower Court ordered the memo. And dismissed the plaintiff 's suit as withdrawn. As a result of the order of dismissal of the suit passed by the Court the right of the defendants 5 to 7 to get themselves transposed as plaintiffs in the suit and continue the same and get their lawful share in the suit property had all been lost. The defendants 5 to 7 , had, therefore, filed I.A.No.736 of 1976 under O.9.R.9 and O.9 R.13 CPC to set aside the order of the trial court dt. 13.9.1976 dismissing the suit treating that order as having been passed ex parte. The plaintiff and the 4th defendant filed a counter contesting above I.A.No. 736 of 1976. The plaintiff and the 4th defendant supported the order of the Court dismissing the suit on the theory the plaintiff had undoubted right under O.23 , CPC to withdraw his suit and that therefore the order of dismissal passed by the trail court on 13-9-1976 was unimpeachable. Having been aggrieved by that order of the trial Court dismissing the said I.A. 736 of 1976 the defendants 5 to 7 had filed the present C.M.A. under O. 43 R. 1 of the Civil P.C. It may be admitted that the application filed by the present appellants-defendants in the court below under O.9.R.9 and O.9. R. 13 read with S. 151 of CPC is not competent, because none of those provisions of Civil P.C. would apply to the facts of this case. O.9 R. 9 CPC applies to a situation where the suit was dismissed by a Court for the reason that the defendant appears and the plaintiff does not appear. That is not the case here. Similarly, O.9. R. 13 C.P.C. deals with a situation where a court makes an ex parte decree against the defendant on the ground that he does not appear. Even that provision does not apply, because no decree was passed on 13-9-1976 against the defendants. It follows that O. 43, R. 1 CPC which provides for a rights of appeal against any orders made under O.9 R.9 or O.9 R. 13 CPC will have no application to the facts of this case.
3. This Civil Miscellaneous Appeal is, therefore not competent. But that is not the end of the matter, as we are of the opinion that the order of the lower court dismissing the plaintiff's suit without notice to the defendants is one passed without jurisdiction., Accordingly, we treat this Civil Miscellaneous Appeal as a Civil Revision Petition filed under S. 115 CPC and proceed to consider the correctness of the order passed by the Court below.
4. In a Civil Revision Petition under S. 115 CPC , the first question that should be considered is whether the orders passed by the lower court are without jurisdiction. We, therefore , examine in this case whether the lower court acted without jurisdiction in allowing the plaintiff to withdraw his partition suit without giving any notice to the defendants.
5. The plaintiff in this case made his application to withdraw the suit under O. 23 the CPC O. 23 R. 1, CPC, reads thus:--
"(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 Rr. 1 to 14 of O. 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-r. (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.
(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 claim.
(4) Were the plaintiff:
(a) abandons any suit or part of claim under sub-rule (1) or
(b) withdraws form 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."
Ordinarily, the plaintiff in a suit has an undoubted right to withdraw the suit either with or without the consent of the Court. The language of O. XXIII generally supports such a right. It speaks of the right of the plaintiff to withdraw the suit in whole or in part against all or some of the defendants at any time after the institution of the suit. The right thus appears to be almost complete, barring the exception noted in sub-Cl. (5) or O. XXIII R. I, CPC. But that these first appearances are wholly deceptive can easily be found by reading O. XXII R.1, CPC, closely. Under sub-Cl. (4)Where the plaintiff abandons any suit or part of a claim under sub-r. (1) or withdraws from a suit or part of a claim without the permission referred to in sub-r. (3) he is made liable to pay such costs to the defendant as the Court may award. Now, clearly sub-Cl. (4), if it were to be given effect to, would not permit the Court to allow the plaintiff to withdraw the suit without notice to the defendant. The quantification of costs payable by the plaintiff would at least require notice to be given to the defendant. That implies that the plaintiff's exercise of his right to withdraw the suit should only be in the presence of the defendants. Sub-cl . (1)(a) is another provision of law which was introduced with effect from 1-2-1977 and which therefore would not apply to the facts of the present case but which works against the theory of unlimited right of the plaintiff to withdraw the suit. Under sub-cl. 1(a) a defendant may apply to be transposed as a plaintiff under O. 1 R. 10, CPC and if permitted by the Court, may continue the suit, Sub-cl. 1(a) again contemplates notice being given to the defendant on the plaintiff's application to withdraw his suit. Independent of sub-cl. 1(a) a defendant can always apply under O. 1 R. 10 CPC to transpose himself as a plaintiff to withdraw his suit. The above would again operate as a limitation on the power of the plaintiff to withdraw his suit. The above would clearly show that the general language of O. XXIII R. 1, CPC couched in wide terms cannot be read literally. Literally read O. XXIII R. 1 no doubt recognises a vast and unlimited right of the plaintiff to withdraw his suit. But no court till today is prepared to read this language of the CPC literally and grant this right to the plaintiff. Even those cases which have vastly leaned in favour of the plaintiff's right to withdraw, did not accept an unlimited right of the plaintiff to withdraw the suit. On the other hand, there are cases which have expressly held that O. XXIII R. 1, CPC should not be read literally and the plaintiff's right to withdraw his suit may have to be limited by the fact that allowing plaintiff's right to withdraw his suit may have to be limited by the fact that allowing plaintiff's exercise of his right to
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