(1) These are two connected second appeals directed against the judgment and decrees of the District Judge. Bijapur dated 23rd December 1954 in Civil appeal Nos. 204 of 1953 and 156 of 1953 disallowing the appeals and confirming the judgment and decrees dated 6-4-1953 of the Civil Judge, Junior Division, Muddebihal in Original Suit Nos. 323 of 1950 and 147 of 1950 respectively on the file of that Court.
(2) The plaintiff in the original suits is the appellant before us in both the second appeals. The facts material for the disposal of these second appeals may be briefly stated as follows: Bhimangouda alias Bhimshappa Patil filed a suit bearing No. O. S. 190 of 1947 in the Court of the Civil Judge, Junior Division, Muddebihal against the first defendant Sangappa Irappa Patil and his genitive father Gadigeppa for accounts under S. 15-D of the Dekkhan Agriculturists Relief Act claiming himself to be the adoptive son of Bhimshappa Patil. He alleged that his adoptive mother Ningawa alienated the suit properties on 28-1-1934 in favour of the first defendant Sangappa Irappa Patil by executing a sale deed in his favour.
But the transaction evidenced by the sale deed was in the nature of a mortgage though it was purported to be a sale. As an alternative relief he claimed than even if the transaction is regarded to be a sale, the alienation being without legal necessity it was not binding on him. It appears from the record that he abandoned his alternative claim in that suit i.e., to set aside the transaction on the ground that it was not for legal necessity and consequently the issues which were framed with regard to this allegation were struck off by the Court. Subsequently he made an application to the Court for withdrawal of his suit. Eventually on 23-3-1950 the Court allowed his application and passed an order which runs as follows:
'Plaintiff wants to withdraw, (See Exhibit 57). He is permitted to withdraw his suit with liberty to bring a fresh suit in respect of the same cause of action. Plaintiffs to pay legal cost (1/4) to the defendants in one set only and bear his own. Plaintiff to pay Court fee to Government which he would have paid in case he was not allowed to sue in forma pauperis. Yadi to be sent to the Collector along with a copy of this order to recover the Court fees from the plaintiff'.
After the withdrawal of the suit O. S. No. 190/47 he filed suit No. O. S. 147 of 1950 in the same Court for accounts under S. 15-D of the Dekkhan Agriculturists Relief Act and O. S. No. 323 of 1950 for setting aside the alienation under the sale deed on the ground of want of legal necessity against the 1st defendant Sangappa Irappa Patil, 2nd defendant Appasaheb Gadigeppa Patil, 3rd defendant Bhimawa kom Gadigeppa Patil and 4th defendant Ningawa Kom Bhimangouda Patil in the Court of the Civil Judge, Junior Division Muddebihal.
(3) In Original suit No. 147 of 1950 the plaintiff alleged that on 4-1-1943 he was adopted by the 4th defendant Ningawa as a son to her and deceased husband Bhimangouda Patil under the registered Adoption Deed dated 5-1-1943. After the death of Bhimangouda Patil the first defendant induced the fourth defendant Ningawa (his adoptive mother) by promising to pay off the debts due by Bhimbandouda Patil, the deceased and that he (first defendant) would reconvey the property to her on repayment of the principal and interest. On his representation, the 4th defendant executed an ostensible sale deed dated 21-8-1943 in his favour.
It was contended by the plaintiff that the sale was normal and the transaction was in fact a mortgage transaction. Therefore, he prayed for relief of accounts under S. 15-D of the Dekkhan Agriculturists Relief Act. Defendants Nos. 1 and 2 in their written statements denied the plaintiff's adoption and contended that the transaction evidenced by the sale deed dated 21-8-1943 was an absolute sale and not a mortgage. They also denied that there was an oral agreement to reconvey the properties to the fourth defendant. They further contended that the plaintiff's suit was not maintainable because it was barred by res judicata and under the provisions of O. 23, R. 1 of the Civil procedure Code. Defendants Nos. 3 and 4 did not contest the suit and an ex parte order was passed against them.
At the hearing a number of issue were framed by the trial court and on consideration of the material on record the trial Court held that the plaintiff was validly adopted by defendant No. 4 as a son to her deceased husband Bhimangouda Patil, that the plaintiff and defendant No. 4 were agriculturists, that the plaintiff was not a debtor under the Bombay Agriculturists, that the plaintiff was not a Debtor under the Bombay Agricultural Debtors Relief Act, the consideration for the transaction was Rs. 1,400/- and that defendants Nos. 1 and 2 have spent Rs. 800/- for the improvement of the land bearing survey No. 1.
It however held that as the transaction was a sale transaction out and out and not a mortgage, the plaintiff is not entitled to any relief to accounts under S. 15-D of the Dekkhan Agriculturists Relief Act. It therefore dismissed the plaintiff's suit. On appeal by the plaintiff to the District Court, Bijapur in Civil Appeal No. 156 of 1953, the learned District Judge confirmed the decision of the trial Court. Aggrieved by the judgment and decree of the District Judge, the plaintiff has preferred second appeal No. B 123 of 1956 before us.
(4) In Civil Suit No. 323 of 1950 the plaintiff sought to set aside the alienation by then fourth defendant in favour of the first defendant on the ground that it was made without legal necessity alleging himself to be the adoptive son of the deceased Bhimangouda Patil. Defendants 1 and 2 in their written statements contended that the alienation was justified by legal necessity. They further contended that the plaintiff's suit was barred by res judicata and by the provisions contained in O. 23, R. 1 of the Civil Procedure Code; it should therefore be dismissed. In this suit also, defendants Nos. 3 and 4 remained absent and ex parte proceedings a number of issues were framed by the trial Court and on the evidence produced the trial judge held that the plaintiff was validity adopted by the fourth defendant Ningawa as a son to her deceased husband Bhimangouda Patil, that the sale deed dated 28-1-1934 executed by the fourth defendant in favour of the first defendant was justified by legal necessity to the extent of Rs. 900/-, that the defendants Nos. 1 and 2 had effected improvements to the tune of Rs. 800/-.
He, however, found that the plaintiff was estopped from challenging the alienation in view of Exhibit 39 passed by him in Original Suit No. 190 of 1947. He further held that the plaintiffs' suit was barred by Order 23, Rule 1 of the Civil Procedure Code. He therefore dismissed the plaintiff's suit. Aggrieved by this judgment and decree of the trial Court, the plaintiff appealed to the District Court, Bijapur in Civil Appeal No. 204 of 1953.
The learned District Judge held that the plaintiff was validity adopted by the fourth defendant as the son of her deceased husband, that the sale deed was justified by legal necessity to the extent of Rs. 1400/- and that an amount of Rs. 800/- was spent by defendant Nos. 1 and 2 on the improvement of the land. He, however, held that the plaintiff is estopped from challenging the suit alienation in view of the Pursis exhibit 39 passed by him in Original Suit No. 190 of 1947 and that his suit was barred by res judicata and also under O. 23 R.1 sub-rule 3 and O. 2, R. 2 of the Civil Procedure Code. He therefore disallowed the appeal. Against the judgment and decree of the lower appellant Court, the plaintiff has filed second appeal No. B. 122 of 1956 before us.
(5) In Second Appeal No. B. 122 of 1956 it has been strenuously argued by the learned Advocate for the appellant, Sri Reddi that the previous original suit No. 190 of 1947 was withdrawn with permission to institute a fresh suit. He urged that though the Pursis exhibit 39 was filed by the plaintiff the application of withdrawal made with a view to institute a fresh suit and on this application the order of withdrawal was made with the permission to file a fresh suit. He contends that there was at the outset a single suit. Hence the order of withdrawal with permission to institute a fresh suit included the suit as a whole.
The lower appellate Court has erred in coming to the conclusion that the suit is barred by O. 23 R. 1 of the Civil Procedure Code. On the other hand, it is contended by the learned Counsel for the respondents Nos 1 and 2 that by the application exhibit 39 the plaintiff had abandoned his claim with regard to the alienation being without legal necessity in original suit No. 190 of 1947. Hence the order of withdrawal with permission to bring a fresh suit which has been passed subsequently cannot be construed to cover the whole suit because the plaintiff had already abandoned portion of his claim i.e., with regard to the validity of the alienation.
The question for consideration therefore is what would be the position it a suit filed before a Civil Court was withdrawn with liberty to bring a fresh suit on the same cause of action. I am inclined to hold that in such cases the suit is to be deemed as not being filed by the plaintiff at all. It is clear when a Court grants leave to file a fresh suit on the identical cause of action the withdrawn suit has no existence in the eye of the law. It is available for no purpose and the parties are relegated exactly to the same position, which they occupied before the suit was brought. The learned Advocate for the appellant cited some cases in support of his argument which are discussed below:
(6) In the case of Mulchand v. Bhikari Das, reported in ILR 7 All 624, it has been observed:
'A recorded co-sharer of a mahal sued the lambardar for his share of the profits of the mahal for the year 1286 fasli. At the time of the institution of the suit, the profits for 1287 and 1288 Fasli also were due, but no claim was then made in respect of them. The suit was struck off on account of the non-appearance of the parties, under Section 140 of Act XII of 1881--N. W. P. Rent Act--with leave to the plaintiff to bring a fresh suit. Subsequently the plaintiff brought a suit against the same defendant for his share of the profits of the mahal for 1287 and 1288 Fasli.'
It was contended in that case that the plaintiff's suit was barred by S. 43 of the Civil procedure Code, but the contention was repelled and it was held that the plaintiff's suit was maintainable and it was not barred by the provisions of S. 43 of the Civil Procedure Code.
(7) The above case was followed in a later decision of the same (Allahabad) High Court reported in Behari Lal Pal v. Sm. Baran Mai Dasi, ILR 17 All 53. In this case it was held that:
'Where a suit is withdrawn with permission under the first paragraph of S. 373 of the Civil procedure Code the effect is to leave the parties in the same position as that in which they would have been if the suit had never been brought'.
It was further held that;
'A plaintiff, therefore, who has obtained an order under S. 373 of the Code of Civil Procedure will not be debarred by S. 43 from claiming in a subsequent suit a relief which he might have included, but did not, in the suit which he was permitted to withdraw.'
(8) The same view was taken by the Rangoon High Court in the case reported in Ma Po. v. A. Bux, AIR 1925 Rang 118(2), wherein it was laid down that:
'Effect of an order for the withdrawal with leave under O. 23, R. 1(2) is to restore the parties to the position in which they would have stood it the suit had not bee filed and, therefore, plaintiff can include portions of his claim in the new suit though they were omitted in the first suit'.
With respect, I entirely agree with this view.
(9) The learned Advocate for the respondent argued that the case relied upon by the appellant relate to acts of omission while in the present case the plaintiff himself has abandoned a portion of his claim. Hence the cases cited on behalf of the appellant are not applicable to the present case. I do not find much force in the argument. The effect of an order for the withdrawal with leave under O. 23, R. 1 sub-rule (2) of the Civil Procedure Code is to relegate the parties to the same position which they occupied before the suit was brought. The withdrawal of the suit has no existence in the eye of the law and therefore whether it is an act of omission or otherwise, the effect would be the same.
(10) In Kanhayalal v. Hiralal AIR 1947 Bom 255, Lokur, J.observed as follows:
'The very words 'withdrawal' and 'abandonment' which bar a fresh suit under O. 23 R. I connote a voluntary action. The order of the Court striking out the name of a defendant of its own accord may, at the most, be regarded as dismissing the claim against him. In that case, as pointed out by Varadachariar J. In Guruvabhotlu v. Jogayya : AIR1935Mad696 the plaintiff's position would be still better. Order 23 R. 1 sub-rule (3) will then have no application, and the dismissal on the ground of misjoinder cannot certainly operate as res judicata. In our opinion, when a defendant is not a proper party to a suit and there is a misjoinder, the proper procedure is to strike out his name under O. 1, R. 10 and in that case a second suit against him is not barred. But if he is a proper party, and the claim against him is not to be proceeded with, it may be dismissed by the Court, or withdrawn by the plaintiff, and it liberty to file a fresh suit is not obtained under O. 23, R. 1 sub-rule (2) then a fresh suit against him on the same cause of action is barred either as res judicata or under O. 23, R. 1, sub-rule (3). Looked at from any point of view, the present suit is not barred by what the plaintiff did in suit No. 86 of 1939.'
(11) In the case reported in Hakir Mahamed v. Abdul Majid, : AIR1953Cal588 , where the suit was for declaration and injunction against co-trespassers, one of the trespassers had died, the suit was decreed against the remaining trespasser and held to be abated against the deceased defendant.. In appeal a plea that the whole suit abated was raised on behalf of the defendants, the plaintiff prayed on behalf of the defendants., the plaintiff prayed for permission to withdraw the suit and for liberty to bring a fresh suit on the same cause of action. The first appellate Court held that the entire suit has abated because of non-substitution of heirs of the defendant (trespassers) and dismissed the suit. In second appeal by the plaintiff, the Calcutta High Court held that the prayer was not belated as the suit could not proceed in the absence of heirs of the deceased trespasser, it therefore set aside the decree of the lower appellate Court and granted permission to bring a fresh suit.
(12) The next contention of the learned Advocate for the respondent is that after the amendment of the claim by the plaintiff in O. S. No. 190 of 1947, the suit which remained before the Court was with regard to the plaintiff's claim for accounts only. Thus the Court was not seized of that portion of the claim which had been abandoned by the plaintiff. He argued that inasmuch as the Court was not seized of the whole suit, therefore the Court was not competent to grant permission with respect to the abandoned claim. Hence the order of withdrawal is a nullity to the extent of the claim which had been abandoned by the plaintiff.
I find it difficult to accept the contention advanced. An order for the withdrawal of a suit with a view to institute a fresh suit in the circumstances not within the scope of O. 23, R. 1 sub-rule (3)(Sic Sub-rule (2)?) of the C.P.C. is not an order made without jurisdiction. It is liable to be challenged in revision on the ground that the order was passed with material irregularity. The order however is not null and void. The fresh suit instituted upon the leave granted is maintainable.
(13) In a case reported in Thuljaram Row v. Gopala Aiyar, 40 Ind Cas 611: (AIR 1918 Mad 1093), it has been held:
'An order permitting the withdrawal of a claim under O. 23, R. 1 C.P.C. which is beyond the competency of the Court to pass, is not a nullity but an order passed in the irregular exercise of jurisdiction'.
(14) The learned counsel for the respondent lastly contends that by splitting his claim, the plaintiff has filed two separate suits O. S. No. 147/1950 and O. S. No. 323/1950. The former suit was for accounts under S. 15-D of the Dekhan Agriculturists Relief Act and in the latter he has prayed for recovery of possession and to set aside the sale transaction on the ground that it was not for legal necessity. He urged that the plaintiff could claim both the reliefs in one suit and since he has omitted his claim with regard to the validity of the alienation in O. S. No. 147 of 1950, viz., the suit which has been registered prior to the original suit No. 323 of 1950, the latter suit is barred by O. 2 R. 2 of the Civil Procedure Code.
Hence he contends that the lower appellate Court was right in holding that the suit (O. S. No. 323 of 1950) is hit by the provisions of O. 2 R. 2 of the Civil procedure Code. Order 2 R. 2 sub-rule (2) of the Civil Procedure Code forbids the plaintiff who has omitted to sue in respect of the portion so omitted.
The correct test in cases falling under O. 2 R. 2 sub-rule (2) is whether the claim in the new suit is in fact founded upon the cause of action distinct from that which was the foundation of the former suit. The expression 'cause of action' though not defined in the Code is understood to denote: 'Every fact traversed in order to support his right to the judgment '. What O. 2 R. 2 of the C.P.C. insists is that every suit should include the whole of the claim arising from one and the same cause of action and not that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant.
(15) The question of applicability of O. 2 R. 2 will arise only when the cause of action in both the suits is the same. The plaintiff's suit O. S. No. 147 of 1950 was for account under S. 15-D of the Dekhan Agriculturists Relief Act, while the other suit O. S. No. 323 of 1950 was brought with the allegation that the alienation made by the fourth allegation that the alienation made by the fourth defendant was invalid and not binding on the plaintiff on the ground that it was not supported by legal necessity. It is thus clear from the reliefs claimed that the cause of action cannot be said to be identical in both the suits.
One of the tests to consider whether there was identity of cause of action in the two suits is whether the same evidence can be led in proof of the claim. If the evidence to support the two claims is different, then the cause of action would be different. Obviously different evidence will have to be let in with regard to the relief claimed in both the suits by the plaintiff. Therefore, it cannot be said that the cause of action is one and the same in both the suits. Consequently the suit O. S. No. 323 of 1950 does not come within the purview of O. 2, R. 2, sub-rule (2) of the C.P.C. Therefore, I cannot endorse the view taken by the lower appellate Court that the suit is barred by O. 2 R. 2 of the Civil Procedure Code.
(16) The lower appellate Court has held that the plaintiff's suit is barred by res judicata. I find myself difficult to agree with the conclusion of the lower appellate Court. To attract the applicability of the principle of res Judicata, it is necessary that matter must have been heard and finally decided. Admittedly in the previous suit O. S. No. 190 of 1947 the Court had never entered into the merits of the case nor any conclusive decision was given by the Court. Moreover, to my mind, when the plaintiff brings a fresh suit after the withdrawal of the first suit with the permission of the Court, the defendant cannot plead res judicata in the subsequent suit.
(17) In Chhajju v. Khyali Ram, 14 Ind Cas 175(All), it has been laid down that:
'An order granting permission to bring a fresh suit under O. 23, R. 1 of the C.P.C. although given for sufficient reasons, becomes final and cannot be reopened in a fresh suit on the merits nor can it operate as res judicata.'
Neither the principle of estoppel to my mind is applicable to the suit. This point has not been seriously disputed on behalf of the respondent and the learned advocate for the respondent Shri Albal learned rightly conceded during the course of his arguments that the rule of estoppel cannot be made applicable to the present case.
(18) The next question for consideration is as to what relief the plaintiff is entitled to. The lower appellate Court found that the plaintiff is validity adopted by the fourth defendant. It however held that the transaction was an absolute sale and it was justified by legal necessity to the extent of Rs. 1,400/-. It also found that an amount of Rs. 800/- was spent by defendants Nos. 1 and 2 on the improvement of the land. These findings of fact of the lower appellate Court are binding in second appeal nor they have been challenged by the respondents before us.
The learned advocate for the respondent, however, argued relying on a decision of this High Court in Ramachandra Rajaram v. Kondubai, Second appeal No. (B) 113 of 1956, that the plaintiff cannot be held entitled to more than half the share in the suit properties. In the ruling cited, it has been held that the mother gets a share in the property alienated by the father which was held to be unauthorised. His Lordship the Chief Justice in this ruling based his conclusion upon the legal fiction viz., that in order to determine the interest of the alienee what has got to be determined is the interest that the alienor would have at the date of the alienation on the assumption that the joint family property was partitioned on that date. His Lordship referred to the Full Bench decision of the Bombay High Court reported in Parappa Ningappa v. Mallappa Kallappa, : AIR1956Bom332 (FB) and the observations of Chagla Chief Justice, in which it is observed.
'What is the effect of this legal fiction? We must assume that there was a partition when the alienation took place, and in this case at the date of the partition there was the father, the son and the wife. There can be no doubt that if a partition had been effected, the wife would have got a share equal to that of the son. If that be so, then the only interest in the joint family property that the father would have alienated was his share and not the share of his wife which would be a separate share assignable to her on the supposed partition.'
This ruling is applicable to the present case and this point has not been disputed on behalf of the appoint has not been disputed on behalf of the appellant. In view of the principle laid down in that ruling, I find sufficient strength in the argument of the learned advocate for the respondent. It would thus appear that the adopting mother defendant No. 4 in this case got half share on the date when the suit alienation took place in the properties. Therefore the plaintiff is entitled to a decree to the extent of half portion of the disputed properties only together with the mesne profits thereon.
As stated above, the alienation is held to be justified by legal necessity to the extent of Rs. 1, 400/- by the lower Court. It has also found that the amount of Rs. 800/- has been spent on improvement of the land. In these circumstances, it would be but just and equitable to pass a decree in favour of the defendants Nos. 1 and 2 while directing the plaintiff to pay half portion of the suit amount to defendants Nos. 1 and 2.
(19) Now, we come to Second Appeal No. (B) 123 of 1956. It has been vehemently argued on behalf of the respondent that the appeal is unmaintainable solely on the ground that the lower Court has held that the alleged transaction was an absolute sale and not a mortgage transaction. I find substance in the argument. Both the courts below after fully considering the evidence have come to the conclusion that the alleged transaction was an absolute sale and not a mortgage transaction as alleged by the plaintiff. This concurrent finding of fact is binding in second appeal and cannot be questioned. In view of these conclusive findings of fact to the effect that the alleged transaction is not a mortgage transaction, this appeal becomes unmaintainable.
(20) On the aforesaid grounds, I allow Second Appeal No. (B) 122 of 1956 and set aside the judgment and decree of the lower Court. The plaintiff's suit is decreed to the extent of half portion of the suit property together with the mesne profits thereon. An enquiry under O. 20, R. 12 in respect of mesne profits may be held. The plaintiff should pay the amount of Rs. 1,100/- (Rupees one thousand and one hundred only) to the first defendant and this would be a condition precedent for the purpose of execution. Partition should be effected in accordance with the provisions contained in O. 20, R. 18 of the C.P.C. By the Collector. Taking into consideration, the circumstances of the case, we order that each party should bear their own costs.
(21) In the result, Second appeal No. (B) 123 of 1956 would fail. It is thus disallowed. This order will govern the connected second Appeal No. (B) 122 of 1956 and a copy of this judgment should be affixed therein.
(22) Order accordingly.