Bookmark
PDF
Share
CaseIQ

Suraj Pal Singh v. Sri Gharam Singh And Others

Allahabad High Court

Nov 29, 1972

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Judgment Summary — Asthana, J.

Factual and Procedural Background

This is the plaintiff's second appeal challenging concurrent decrees dismissing his suit seeking demolition of a wall and an injunction. The plaintiff alleged the defendants constructed a wall on a village pathway, thereby obstructing his right of way; he sought a decree for demolition and an injunction restraining the defendants from obstructing the pathway. The defendants denied the allegations, pleaded that the wall was raised on old foundations of their Gher, and contended no public pathway ever existed on the disputed land. The plaint contained a hint of a prescriptive right of easement, but at trial the plaintiff sought to establish that the land was a village pathway. The trial court found that the plaintiff failed to prove the land formed part of a village pathway and also found the wall had been constructed on the defendants' old foundations; on those findings the suit was dismissed. The appeal was apparently concluded on findings of fact. During argument in this appeal, counsel for the plaintiff-appellant applied for permission to withdraw the suit; this application was opposed by counsel for the defendant-respondents.

Legal Issues Presented

Whether a plaintiff can withdraw his suit at the appellate stage under sub-rule (1) of Rule 1 of Order 23 of the Code of Civil Procedure (CPC), and if so, under what conditions.
Whether permitting withdrawal in an appeal would adversely affect any vested or substantive rights of the defendant arising from the trial or appellate findings (including any benefit of those findings in future litigation by way of res judicata).
If the plaintiff has no absolute right to withdraw at appellate stage, what power or provision permits the appellate court to allow withdrawal and to grant liberty to institute a fresh suit.

Arguments of the Parties

Appellant's Arguments

The appeal is in continuation of the suit and the decree below is not final; therefore the plaintiff-appellant may withdraw the suit under sub-rule (1) of Rule 1 of Order 23 of the CPC.
The plaintiff did not claim an absolute unqualified right to withdraw at the appellate stage; instead he relied on precedent (Vidhyadhar Dube v. Har Charan) for the proposition that an appellate court may permit withdrawal when no vested or substantive right of the defendant would be adversely affected.
The plaintiff offered to pay costs and indicated that a representative suit by village residents would be filed, as public interest is involved.

Respondents' Arguments

The defendants opposed withdrawal on the ground that findings recorded in their favour by the trial court and affirmed on appeal give them vested or substantive rights, and such findings could be used in future litigation (res judicata), so withdrawal would adversely affect those rights.
Allowing withdrawal would set aside the findings and remove the benefits that accrued to the defendants from those findings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raisa Sultana v. Abdul Qadir, AIR 1966 All 318	That under sub-rule (1) of Rule 1 of Order 23 a plaintiff's application signifies willingness to withdraw, and the court need only strike the suit off and normally saddle the plaintiff with costs; no formal order may be necessary.	The court cited this authority for the proposition that a withdrawal application under the sub-rule indicates willingness to withdraw and may not require elaborate formalities.
Bhagwat Prasad v. Raghunath Prasad, 1962 All LJ 915	Held that when a decree is not final due to an appeal, the plaintiff can withdraw the suit, with or without the court's permission; withdrawal with permission allows institution of a fresh suit within limitation; without permission the plaintiff cannot seek remedy afresh.	Cited as authority for the position that withdrawal at the appellate stage may be permitted and the consequences differ depending on whether permission is given.
Vidhyadhar Dube v. Har Charan, AIR 1971 All 41	Held that sub-rule (1) of Rule 1 of Order 23 does not in terms apply to appeals; the appellate court may permit withdrawal when no vested/substantive right of the defendant will be adversely affected.	Relied upon by the appellant; the court considered this Division Bench view but noted other authorities supporting permission to withdraw under Order 23 Rule 1 at the appellate stage.
Afzal Begam v. Akhari Khanam, ILR 37 All 326 : AIR 1915 All 123	Held that an appellate court can, under Order 23 Rule 1 of the CPC, give a plaintiff whose suit was dismissed permission to withdraw and grant leave to institute a fresh suit.	Used to support the view that appellate courts have power under Order 23 Rule 1 to permit withdrawal with liberty to sue afresh.
Ratan Lal v. Mohammad Hamidullah Khan, AIR 1921 All 65	Recognised power of appellate court under Order 23 Rule 1 to substitute dismissal decree with an order permitting withdrawal with liberty to institute a fresh suit.	Cited as historical authority recognizing the appellate power to permit withdrawal with liberty to institute a fresh suit.
Kamta Prasad v. Gaya Prasad, 1971 All WR (HC) 667 : AIR 1972 All 143	Held that even at the appellate stage the plaintiff has an unqualified right to withdraw the suit without seeking permission to file a fresh suit on the same subject-matter.	Cited as authority supporting an unqualified right to withdraw at appellate stage (a view the judge noted but did not treat as controlling given other authorities).
Kanhaiya v. Dhaneshwari, 1972 All WR (HC) 590 : AIR 1973 All 212	Held the contrary: that the plaintiff has no unqualified right at the appellate stage to withdraw the suit.	Cited to show conflicting authority on whether an unqualified right exists at appellate stage; used to demonstrate the divergence of judicial views.

Court's Reasoning and Analysis

The court began by acknowledging a prevailing consensus that a plaintiff may withdraw a suit in an appeal with the court's permission under Order 23 Rule 1 CPC, but also recorded conflicting authority on whether an absolute right to withdraw exists at the appellate stage. The learned judge expressed skepticism about the defendants' primary contention that a decree of dismissal and findings in favour of the defendants produce a "vested" right that would be harmed by withdrawal. Specifically, the court reasoned that:

The dismissal of a suit, especially in a case seeking injunctions, does not itself create a substantive or vested right in favour of the defendant; findings of fact have value but do not automatically convert into a vested substantive right merely because they may be relied upon in future litigation.
While some decisions (e.g., Vidhyadhar Dube) treated sub-rule (1) of Rule 1 as not expressly applicable to appeals, the court identified earlier authorities (Afzal Begam, Ratan Lal) recognizing an appellate court's power under Order 23 Rule 1 to permit withdrawal with liberty to file a fresh suit; the judge therefore proceeded on the basis that the plaintiff could take the benefit of sub-rule (1) of Rule 1 of Order 23 even at the appellate stage.
Applying these legal principles to the facts, the court observed that the trial courts decided only that the plaintiff failed to establish the land as a village pathway and that the wall was on old foundations. The court held that such findings did not amount to vested rights for the defendants; indeed, permitting withdrawal could remove any "cloud" on the defendants' title rather than place them in a worse position than under the decree of dismissal.
Given the circumstances — the absence of a demonstrated substantive or vested right that would be prejudiced by withdrawal, the plaintiff's offer to pay costs, and the suggestion that a representative public-interest suit might be filed — the court concluded it was appropriate to allow withdrawal with conditions.

Holding and Implications

HOLDING: The court substituted the decree of dismissal with an order permitting the plaintiff to withdraw the suit, on the condition that the plaintiff pay all costs incurred in the two courts below and in this appeal.

Implications:

Direct effect on the parties: The plaintiff is permitted to withdraw the suit on payment of all costs to date. This removes the decree of dismissal as the operative outcome in this litigation and allows the plaintiff to pursue the matter further (the plaintiff indicated an intention for a representative suit by village residents).
The court expressly held that the findings recorded by the trial and lower appellate courts did not confer vested or substantive rights on the defendants such as would preclude withdrawal. The withdrawal was therefore permitted because it would not adversely affect a vested right of the defendants under the circumstances of this case.
On broader precedent: the opinion resolves the application by applying existing authorities and reconciling conflicting decisions in the judge's approach, but it does not purport to lay down a new general rule beyond permitting withdrawal in the particular circumstances described. The decision applies established principles on withdrawal at the appellate stage and conditions the permission on payment of costs.

Order: Permission granted to the plaintiff to withdraw the suit on payment of all costs incurred in the two courts below and in this appeal. Order accordingly.

Show all summary ...

Asthana, J.:— This is a plaintiff's second appeal from a concurrent decree of dismissal of his suit for demolition of a wall. Alleging that the defendants have constructed a wall on the village path-way thereby obstructing it, the plaintiff's user of it as of right has been infringed a decree for demolition of the wall and for injunction restraining the defendants from obstructing the plaintiff from exercising his right of way over the disputed land was sought. The defence was a denial of the plaintiff's allegations. It was pleaded that the defendants had raised the wall on the old foundations of their Gher and no public pathway ever existed on the land in dispute. It appears that there was a hint in the plaint of some kind of prescriptive right of easement founded on a user of the land in dispute as a pathway but in the trial itself what was sought to be established was that the land in dispute over which the wall had been constructed by the defendant was a village pathway. The plaintiff failed to establish by the evidence on record that the land in dispute formed part of the village pathway. A finding was also recorded that the wall had been constructed by the defendants on their old foundations. On these findings the suit of the plaintiff was dismissed. This appeal is apparently concluded by findings of fact. During the course of his argument the learned counsel for the plaintiff-appellant made an application for withdrawal of the suit by the plaintiff. This prayer was opposed by the learned counsel for the defendant-respondents.

2. The consensus of opinion in this court is that in an appeal a plaintiff can withdraw his suit under Order 23 Rule 1 of the CPC with the permission of the court. An absolute right to a plaintiff to withdraw from the suit in appeal from the decree of dismissal of his suit has been denied to him on the ground that after passing of the decree of dismissal in the suit on the findings recorded in favour of the defendant the latter gets some vested rights. I have never been able to appreciate what kind of vested right accrues to a defendant when the suit of the plaintiff is dismissed in toto particularly in suits for mere injunctions. It was suggested by the learned counsel for the defendant respondents that the findings recorded in the suit on the issues and controversies arising on the pleadings of the parties by themselves are of great value to the defendants and may in future litigation operate as res judicata. It is difficult for me to hold that such a kind of benefit can be termed as a vested right. However, such a line of argument has found acceptance at the hands of some Judges of this Court and it has been held by them that the benefit that accrues to a defendant on the findings recorded as they can be used in future as res iudicata between the parties takes away the absolute right of the plaintiff to withdraw from the suit in appeal from the decree of dismissal. Under sub-rule (1) of Rule 1 of Order 23 of the CPC a plaintiff is at liberty to withdraw at any time after the institution of the suit or abandon part of his claim. When a plaintiff withdraws a suit or abandons a part of the claim without permission to institute a fresh suit in respect of the same subject-matter he shall be liable for costs. In Raisa Sultana v. Abdul Qadir (AIR 1966 All 318) a Division Bench of this Court has taken the view that by an application under sub-rule (1) of Rule 1 of Order 23 a plaintiff signifies his willingness to withdraw the suit and nothing else is to be done by the Court nor even a formal order need be passed. The suit would only be struck off. The Court will only saddle the plaintiff with costs. In the case of Bhagwat Prasad v. Raghunath Prasad (1962 All LJ 915) a learned Single Judge held that when the decree of the trial Court has not become final on account of an appeal being preferred by one party or the other the plaintiff can withdraw the suit. The withdrawal can be with or without the permission of the Court. If the suit is withdrawn with the permission of the Court the plaintiff can institute another suit within the period of limitation. But if he withdraws the suit without the permission of the Court he cannot seek remedy afresh.

3. It was urged by the learned counsel for the plaintiff appellant that the appeal being in continuation of the suit and the decree of the Court below not being final, it is always open to the plaintiff to withdraw his suit under sub-rule (1) of Rule 1 of Order 23 and costs will be payable by the plaintiff since he is not seeking permission to bring a fresh suit on the same subject matter. In view of the consenus opinion of this Court the learned counsel for the plaintiff-appellant did not claim for the plaintiff that he has an absolute right to withdraw from the suit but contended that a Division Bench of this Court in the case of Vidhyadhar Dube v. Har Charan, AIR 1971 All 41. has held that sub-rule (1) of Rule 1 of Order 23 of the Code does not in terms apply to appeals and whatever may be the legal position in the trial Court, in the appellate Court the plaintiff be he an appellant or a respondent cannot be held to possess any absolute right to withdraw the suit but the appellate Court may permit the plaintiff to withdraw the suit when by such withdrawal no vested or substantive right of the defendant is to be adversely affected. A question then arises under what provision of the Code has an appellate Court power to allow the withdrawal of the suit by the plaintiff conceding that the plaintiff has no absolute right? The Division Bench observes that subrule (1) of Rule 1 of Order 23 of the CPC does not in terms apply to appeals. I do not think I should take the matter to the point of dissent from the observations of the Division Bench in AIR 1971 All 41 (Supra) as there is ample authority of this Court in favour of the view that a plaintiff can always withdraw from a suit even at an appellate stage and the appellate Court has power to allow the withdrawal under Order 23. Rule 1 of the CPC. In a Division Bench decision in the case of Afzal Begam v. Akhari Khanam, ILR 37 All 326 : (AIR 1915 All 123) it has been held that an appellate Court can under Order 23. Rule 1 of the CPC give a plaintiff whose suit has been dismissed by a Court of first instance permission to withdraw his suit and give him leave to institute a fresh one. In Ratan Lal v. Mohammad Hamidullah Khan, AIR 1921 All 65 the power of an appellate Court to substitute a decree for dismissal of a suit with an order. Under Order 23. Rule 1 permitting the plaintiff to withdraw from the suit with liberty to institute a fresh suit in respect of the subject-matter of the same was recognised. These two authorities were not noticed by the Division Bench in the case of AIR 1971 All 41 (supra). I would proceed, therefore, on the basis that the plaintiff-appellant can take the benefit of the provisions of sub-rule (1) of Rule 1 of Order 23 of the CPC to withdraw from the suit. Though I have in Kamta Prasad v. Gaya Prasad, 1971 All WR (HC) 667 : (AIR 1972 All 143) held that even before the appellate Court the plaintiff has an unqualified right to withdraw the suit without seeking permission to file a fresh suit on the same subject-matter but another learned Single Judge in the case of Kanhaiya v. Dhaneshwari, 1972 All WR (HC) 590 : (AIR 1973 All 212). has taken the view that the plaintiff will have no unqualified right at the appellate stage to withdraw his suit.

4. The learned counsel for the plaintiff appellant does not claim the order for withdrawal on the basis of absolute unqualified right enuring in the plaintiff. He submits that in view of the ratio of decision in AIR 1971 All 41 (Supra), this Court may permit the plaintiff to withdraw the suit as by such withdrawal no vested or substantive right of the defendants is to be adversely affected. In reply the learned counsel for the defendant-respondents submitted that the defendants' vested rights would be adversely affected inasmuch as the findings recorded by the trial Court and affirmed by the lower appellate Court would be set aside and whatever benefits accrued to the defendants will no longer be available to them. I do not think the findings recorded on the issues arising in the suit confer any vested or substantive right on the defendants.

5. In fact what has been decided in the suit is that the plaintiff failed to establish that the land in dispute was the village pathway. I am not impressed with the contention put forward on behalf of the defendants respondents that in the suit a finding has been recorded in favour of the defendants that the land in dispute belonged to them. Even if there was a finding to this effect in the suit, it will not confer any vested or substantive right on the defendants. The decree of dismissal of the suit by itself does not confer any right on any party to the suit. Moreover on the allegations in the plaint the land in dispute was said to be a village Pathway. There had been some litigation also in the past about this land. If the plaintiff is allowed to withdraw the suit the defendants will not be affected adversely as by the withdrawal of the suit the cloud if any on the defendant's right would vanish. They will not be in a more disadvantageous position than in what they were because of the decree of dismissal of the suit. It has been stated in the application for withdrawal that a representative suit by the residents of the village would be filed as the interest of general public is involved. On a consideration of the entire circumstances of the case. I think the plaintiff-appellant may be permitted to withdraw the suit on payment of all the costs hitherto and of this appeal.

6. Accordingly, I substitute the decree of dismissal of the suit by an order permitting the plaintiff to withdraw the suit on payment of all the costs incurred in the two Courts below and of this appeal.

7. Order accordingly.