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Yeshwant Govardhan Vs. Totaram Avasu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 1155 of 1954
Judge
Reported inAIR1958Bom28; (1957)59BOMLR659; ILR1957Bom801
ActsCode of Civil Procedure (CPC), 1908 - Order 23, Rules 1, 1(3) and 3; Bombay Tenancy Act, 1939 - Sections 23; Bombay Tenancy and Agricultural Lands Act, 1948
AppellantYeshwant Govardhan
RespondentTotaram Avasu and ors.
Appellant AdvocateR.B. Kotwal, Adv.
Respondent AdvocateV.B. Patwardhan, Adv.
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 1 - application by plaintiff to withdraw suit--withdrawal of such application whether permissible and when.;it is open to a plaintiff to withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by an order of the court.;if the plaintiff has a right to withdraw his suit, he has, equally, a right to withdraw his withdrawal and so long as the court has not made an order, showing that the withdrawal has become complete or effective, there is always a locus poenitentiae for the plaintiff to withdraw his withdrawal.;lakhmana v. alwar ayyangar [1923] a.i.r. mad. 246 and midnapore zemindary co. v. bijoy singh [1941] a.i.r. cal. 1 agreed with. - maharashtra scheduled castes, scheduled tribes,..........of civil procedure. under order xxiii, a plaintiff may, at any time after the institution of a suit, withdraw his suit or abandon part of his claim. if a plaintiff withdraws his suit with permission to file a fresh suit, the court may or may not grant the permission sought by him. but a plaintiff may withdraw from his suit without feeling the necessity of filing a fresh suit. in such a case no question of permission arises. mr. patwardhan, who appears for the contending respondent argues that where a plaintiff does not seek permission to file a fresh suit but merely wants to withdraw his suit, an order of the court is not necessary and it is, therefore, argued that in this case the moment the plaintiff filed the purshis, ex. 31, the withdrawal became effective and complete and the.....
Judgment:

Dixit, J.

1. This appeal arises from a suit filed by the plaintiff-appellant to recover from the defendants-respondents a sum of Rs. 2,884-14-0 on account of a lease. The lease was executed under the following circumstances. The lands which are the subject-matter of the lease are three fields bearing survey Nos. 28/1, 30 and 31. These lands are of the ownership of the plaintiff. On 8th February 1946 the plaintiff granted a lease to the defendants for a period of five years at a rent of Rs. 1,100 per year. On 11th April 1946, the Bombay Tenancy Act, 1939, was made applicable to the locality in which the lands are situate. As a result of the operation of Section 23 the lease, though limited to a pe-riod of five years, became a lease for a period of ten years. On 24th January 1947, the defendants surrendered the three lands and possession was given to the plaintiff. An endorsement was made to that effect upon the lease. In 1947-48 the plaintiff cultivated these lands. In 1948, however, the Bombay Tenancy and Agricultural Lands Act, 1948, came into operation and then the third defendant applied to the Mamlatdar, claiming that the surrender was not valid. On 30th April 1948 the application was granted and possession was restored to defendant No. 3. Defendant No. 3 then applied to the Mamlatdar for fixing reasonable rent and the Mamlatdar fixed the reasonable rent at Rs. 600 per year. This order was taken in appeal and the Collector fixed the reasonable rent at Rs. 758 per year. It is not clear from the record as to when the Mamlatdar and the Collector made the respective orders, but the appellate judgment shows that the Mamlatdar made the order before the present suit was filed and that the Collector made the appellate order after the suit was decided by the trial Court. The suit was filed on the 9th March 1951 and the suit ended in a decree on the 13th September 1952.

2. While the suit was pending, two purshises were filed. Exhibit 30 was a purshis filed on behalf of the third defendant and the purshis stated that the third defendant had given up all his contentions and that the reasonable rent of the suit lands was a sum of Rs. 1,100, independently of the amount of assessment. The purshis went on to say that the third defendant had given up all his proper contentions under the Tenancy Act. This purshis was filed on the 19th March 1952 and on the same day the plaintiff filed a purshis which, after referring to the giving up of all the contentions by defendant No. 3 and about the third defendant having admitted a sum of Rs. 1,100 being the amount of the reasonable rent, went on to say that the plaintiff wanted to withdraw the suit as against defendant No. 3. Upon these two purshises, the Court did not make any specific order, but a reference to the purshises, which are Exs. 30 and 31 in the case, shows that they were filed before the learned Judge.

3. On 17th June 1952 the plaintiff filed an application, asking that the name of the third defendant should not be deleted from the suit and that the suit should proceed as against him. It may be pointed out that after the two purshises, Exs. 30 and 31, were filed, the learned Judge re-cast the issues and that was on the 19th March 1952. The learned Judge considered the application of the 17th June 1952 and rejected it on the ground that the application was not maintainable and also on the ground that the application was not supportable on merits. The trial Court then proceeded to pass a decree in favour of the plaintiff against defendants Nos. 1 and 2 for a sum of Rs. 103-10-0 with proportionate costs of the suit.

4. From the decree made in the suit, the plaintiff went in appeal before the District Court, East Khandesh, at Jalgaon, and the learned District Judge confirmed the decree of the trial Court. From the appellate decree the plaintiff has come up in second appeal and the contention taken on behalf of the appellant is that the Courts below were wrong in not permitting the plaintiff to have his suit proceeded as against defendant No. 3.

5. To appreciate this contention, it may be borne in mind that both upon the plaint and the decree a note was made by the Court which shows that defendant No. 3 was deleted from the record as from 29th August 1952. 29th August 1952 is the date of the disposal of the application made by the plaintiff, which is Ex. 36 in the case. It is clear, therefore, that defendant No. 3 was not deleted from the record by an order of the Court until the 29th August 1952. It follows that when the plaintiff made the application, Ex. 36, on the 17th June 1952 the name of the defendant No. 3 was not deleted from the record and this circumstance has a material bearing upon the question which has been argued by Mr. Kotwal on behalf of the plaintiff-appellant. Mr. Kotwal says that it was true that the plaintiff applied to withdraw from the suit as against defendant No. 3, but he says that so long as that withdrawal had not become effective by an order of the Court, it was open to him to withdraw his withdrawal, and since the Court had not made an order upon his withdrawal, it was open to him at any time to withdraw the withdrawal before the withdrawal had become effective. In this connection he relies upon the provisions contained in Order XXIII, Rule 1 of the Code of Civil Procedure. Under Order XXIII, a plaintiff may, at any time after the institution of a suit, withdraw his suit or abandon part of his claim. If a plaintiff withdraws his suit with permission to file a fresh suit, the Court may or may not grant the permission sought by him. But a plaintiff may withdraw from his suit without feeling the necessity of filing a fresh suit. In such a case no question of permission arises. Mr. Patwardhan, who appears for the contending respondent argues that where a plaintiff does not seek permission to file a fresh suit but merely wants to withdraw his suit, an order of the Court is not necessary and it is, therefore, argued that in this case the moment the plaintiff filed the purshis, Ex. 31, the withdrawal became effective and complete and the plaintiff would not be entitled to withdraw his withdrawal as was attempted by him by his application. Ex. 36.

6. Now, a suit may be disposed of in various ways. A suit may be disposed of by allowing plaintiff's claim. A suit may be disposed of by the dismissal of a plaintiff's claim. A suit may, again, be disposed of by a compromise between the parties and by a consent decree being taken between them and lastly, a suit may be disposed of by withdrawal as indicated in Order XXIII. It seems to us, and it will be conceded, that when a suit is filed, the Court has control over the proceedings initiated by the suit. If such a view were not taken, it would lead to confusion in the proceedings. The suit must be shown to be disposed of in a manner permitted by the law.

7. Mr. Kotwal argues that there is nothing to prevent a plaintiff from withdrawing his withdrawal, because to withdraw from a suit is a matter of the plaintiff's choice and the only thing which the defendant is concerned with is to have an order for costs made in his favour, as provided in Order XXIII, Rule 3. If a plaintiff withdraws from his suit or abandons part of his claim, it is not certainly a matter in which the defendant can have his say. The defendant cannot compel a plaintiff to prosecute his suit and if a plaintiff, therefore, withdraws his suit, it is entirely a matter of his choice. If, therefore, the plaintiff has a right to withdraw his suit, he has equally, a right to withdraw his withdrawal and so long as the Court has not made an order, showing that the withdrawal has become complete or effective, there is always a locus paenitentiae for the plaintiff to withdraw his withdrawal. In so holding, there is no injustice to the defendant. If the defendant cannot compel a plaintiff to continue his suit, the defendant cannot, equally, compel a plaintiff not to withdraw his withdrawal. We think, therefore, that, in law, the true position is that it is open to a plaintiff to withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by an order of the Court. This view is supported by at least two decisions reported in Lakshmana Pillai v. Appalwar Alwar Ayyangar AIR 1923 Mad 246 and in Midnapore Zemindary Co. Ltd. v. Bijoy Singh : AIR1941Cal1 .

8. Notwithstanding the principle deducible from these two cases, Mr. Patwardhan contends that no order of the Court is necessary upon an application made by the plaintiff for withdrawal of his suit. In our Opinion, the contention is not correct, and cannot be supported. It is true that Order XXIII, Rule 1 does not require in, terms that the Court should make an order in case in which the plaintiff withdraws his suit without any permission to bring a fresh suit. But under Order XXIII, Rule 1, the Court has to make an order about costs, which suggests that the Court has to make an order after the plaintiff withdraws his suit. Moreover, the consequence of the plaintiff, withdrawing his suit, is to debar the plaintiff from instituting any fresh suit in respect of the subject-matter or part of the claim withdrawn by him. Surely, if that is the consequence of a withdrawal, the proceedings before the Court must show that the plaintiff has withdrawn either his suit or part of his claim. In our view, therefore, the Court below was wrong in holding that it was not open to the plaintiff to withdraw his application for withdrawal, Ex. 36.

9. But Mr. Patwardhan argues that on the merits the plaintiff has no case. He says that the casa as made out by the plaintiff in his application was that the plaintiff was deceived by the third defendant and a sort of deception had been practised upon him and this contention has been rejected by the learned appellate Judge. Now, the third defendant, by his purshis, gave up his contentions under the Tenancy Act and agreed that a sum of Rs. 1,100 was reasonable rent. This purshis was given on the 19th March 1952. At this time an appeal was pending before the Collector against an order made by the Mamlatdar, fixing the reasonable rent at a sum of Rs. 600. It may be that the Mamlatdar had to fix the amount of reasonable rent as required by the statute, but the plaintiff filed his purshis, Ex. 31, upon the footing that the third defendant had given up all his contentions under the Tenancy Act and that as between the plaintiff and the third defendant, the amount of reasonable rent was a sum of Rs. 1,100. In appeal, the Collector held that the amount of reasonable rent was a sum of Rs. 758, which is evidently a sum less than the amount of reasonable rent as agreed to between the plaintiff and defendant No. 3. If, therefore, the plaintiff agreed to withdraw his suit against defendant No. 3 upon the faith and representation that the amount of reasonable rent would be Rs. 1,100 and if the plaintiff afterwards found that the amount of reasonable rent was not Rs. 1,100 but a sum of Rs. 758, it is clearly a case where the plaintiff's claim has been prejudiced and it would be open, in these circumstances, to the plaintiff to say that he would withdraw his application for withdrawal. This the plaintiff can certainly do before an order has been made upon his application for withdrawal. The proceedings show that there was no order made by the Court and the order made by the Court was on the 29th August 1952, as will be seen from the plaint and the decree, and that was after the plaintiff filed his application for withdrawal on the 17th June 1952. We, therefore, disagree with the learned Judge in holding that it was not open to the plaintiff to ask for the withdrawal of his application for withdrawal and we further disagree with the learned Judge in holding that the trial Court was right in rejecting the plaintiffs application, Ex. 36.

10. Mr. Patwardhan for the respondent contends that the plaintiff has failed to make out his case on the merits of the application. Even if that contention is right, if, in law, the plaintiff is entitled to withdraw his application for withdrawal, the plaintiff cannot be prevented from making such an application.

11. Upon the merits of the plaintiff's claim there is little to be said in favour of the third, defendant. It is not in dispute now that for the years 1948-49 and 1949-50 the plaintiff is entitled to recover from the third defendant the amount of rent at Rs. 758-4-0 per year. The total amount of rent, therefore, claimable by the plaintiff from the third defendant for those two years would be Rs. 1,516-8-0. It is not again in dispute that under the terms of the lease the lessees were required to pay the amount of the assessment and the plaintiff, who has paid the amount of the assessment for those two years, would be entitled to recover from the third defendant a sum of Rs. 206. In all, therefore, the plaintiff is entitled to claim from the third defendant a sum of Rs. 1,722-8-0. Mr. Patwardhan has not disputed the correctness of these figures and the plaintiff will, therefore, be entitled to have a decree passed in his favour against the third defendant. The result of the aforesaid discussion is that the plaintiff must succeed as against the third defendant.

12. The appeal will, therefore, be partially allowed, the decree passed by the lower appellate Court as well as by the trial Court will be modified and there will be a decree in favour of the plaintiff for a sum of Rs. 1,722-8-0 to be recovered from the third defendant with interest at 4 per cent, per annum from the date of the suit to the date of payment. The decree passed against defendants Nos. 1 and 2 will be maintained. The plaintiff will recover from the third defendant a half of his costs throughout. In other respects, with, regard to defendants Nos. 1 and 2 the lower Court's decree will be confirmed.

13. Appeal partly allowed.


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