Ameena Bi And 2 Others v. Ameer Bi And 5 Others.

JUDGMENT

Plaintiff in O.S No. 1459 of 1997 on the file of City Civil Court, Madras, filed the above Second Appeal. She died later, and appellants 2 and 3 and 6th respondent have been impleaded as her legal representatives.

2. Suit filed by plaintiff was one for permanent injunction on the following allegations:—

Plaintiff purchased the property mentioned in the plaint, on 12-9-1974 as per Ex. A-1 and was in exclusive possession of the property. She is the second wife of one Sattar Khan. Before her marriage with Sattar Khan, her elder sister Zainub Bi was his wife. On the death of Zainub Bi, plaintiff married Sattar Khan. It is further said that in the earlier marriage, Sattar Khan had a daughter, and she was given in marriage to one sulaiman, and Sulaiman and his wife were residing in the suit property. It is said that Sulaiman's wife died, and afterwards Sulaiman is keeping first defendant as his mistress. Sulaiman, along with the first defendant, taking advantage of their occupation, have leased out portions of the suit property to second defendant, who has sub-leased the same to defendants 3 to 5. It is said that first defendant is also claiming title to the suit property. There was exchange of notices. It is said that the occupation of first defendant was as a licensee and the same has been revoked. It is said that since first defendant attempted to meddle with the property, the suit was instituted for injunction.

3. Defendants 1 to 5 filed a joint written statement. According to them, defendants 4 and 5 and Ameer Bi are tenants of Second defendant. The sale deed in favour of plaintiff is not valid and is not binding on defendants 1 and 2. It was obtained fraudulently. At any rate, it was only in respect of the land. It does not confer on the plaintiff any title to the superstructure. It is said that on the basis of the sale deed, plaintiff cannot claim any title to the Superstructure. It is further said that the plaintiff is residing in a portion of the suit property. It is further averred that the allegation that Zainub Bi and her husband Sulaiman were permitted to reside in the suit land is false. It is also said that Sulaiman is the husband of first defendant, and that he has put up all the huts and superstructures. According to defendants 1 to 5, children of first defendant are also necessary parties to the suit. It is further said that Sulaiman entered into an agreement with Muthiah, the owner of the land and he is entitled to the benefits of the City Tenants Protection Act. Muthiah agreed to sell the land to Sulaiman and has also received a sum of Rs. 1,500/-. But the sale could not be completed, and Sulaiman died.

After his death, plaintiff and her husband approached Muthiah and fraudulently obtained a sale deed. According to defendants 1 to 5, Sulaiman permitted the plaintiff and her husband to reside in one of the houses. It is said that the occupation of the plaintiff is only that of a licensee, she being the mother-in-law. Taking advantage of the permission given to her, she is claiming title. No portion of the plaint property belonged to plaintiff. Defendants 1 to 5 prayed for dismissal of the suit.

4. Trial Court, as per judgment dated 24-1-1980, decreed the suit with costs. Injunction prayed for was also granted. In paragraph 13 of the trial Court, it observed that the suit ought to have been one for declaration of title over the land and superstructure. But the non-claim of relief, according to trial Court, will not disentitle the plaintiff from geting the relief of injunction, if she is found to be in possession.

5. When the matter was taken in appeal, as A.S No. 106 of 1981, on the file of City Civil Court, Madras, the lower Appellate Court took a different view. The suit was dismissed holding that the defendant is not in possession. It is against the said judgment plaintiff preferred this Second Appeal.

6. At the time of admission of the Second Appeal, the following substantial questions of law were raised for consideration:—

“(1) Whether Exx. A-1 to A-5, A-16, A-18 to A-22 are not sufficient in law to establish the title and possession of the appellant in respect of the suit property comprising of the land and huts put up therein, when the defendants have not proved their ownership to the suits property.

(2) Whether the appellant is not entitled to the relief of permanent injunction restraining the defendants from committing damages to or waste on the suit property.”

7.I do not want to go into the merits of the case in view of C.M.P No. 11306 of 1985 wherein the plaintiff/appellant has sought permission to withdraw the suit and permit her to institute a fresh suit on the same cause of action.

8. In the affidavit filed in support of the said application, it is said that in the trial Court, the decision was in her favour. When the matter was taken to the lower Appellate Court it has taken a different view by coming to the conclusion that plaintiff is not the sole occupant in possession and, therefore, dismissed the suit. It is further averred that in course of proceedings, she came to know that the first defendant has leased out the land to an extent of….. in favour of second defendant together with the huts therein as per lease deed dated 31.5.1974 and she asserts for possession through tenants. It is further averred that she has already filed a suit as O.S No. 2258 of 1984 against respondents in this appeal as well as others for declaration of her title to the suit land, with five suits properties situated therein, with an additional prayer for recovery of possession, and also for future mesne profits. It is said that in that suit, defendants herein have also entered appearance. It is further said that in view of the filing of the said suit, legal advice has been obtained, not to prosecute the suit from which the present Second Appeal arises. It is further said that since a comprehensive suit has already been filed for declaration of title and recovery of possession, she may be permitted to withdraw the present suit with liberty to seek necessary reliefs in the suit which she has subsequently instituted.

9. The said C.M.P is seriously opposed by respondents. According to them, they have obtained a vested right by getting a dismissal of the suit and, therefore, plaintiff has no legal right to withdraw the suit after adjudication. The attempt of the plaintiff is only to Cure the defects in the suit which she has already instituted. It is further said that no grounds have been made out under order 23 Rule 1(3) of the Code of Civil Procedure for permitting the plaintiff to withdraw the suit with permission to file a fresh suit. It is further contended that even during the trial of this suit, plaintiff wanted an amendment to the plaint seeking declaration of title and recovery of possession. That amendment application was dismissed as per order dated 8-9-1979, which has become final. Plaintiff was made known about the defects in the suit even in the written statement filed in this case, and if permission is granted, respondents also will be asked to contest the suit which they have been doing for the last more than 13 years. According to them, the present application is vexatious.

10. According to learned counsel for respondents the provisions of Order 23, C.P.C may not apply to the facts of this case. Sub-rule (3) of Rule 1 of Order 23, C.P.C reads thus:—

“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.”

11. In a decision of the Punjab and Hariyana High Court reported in AIR 1985 P&H 2(Girdharilal v. Chairman, B.B.M Board), in paragraph 4, the learned Judge said that ‘if the second suit is filed before the first suit is withdrawn, then, Order 23 of the Code of Civil Procedure is not attracted and the second suit cannot be dismissed under O. 23, R. 1(4) of the Civil P.C’ In that case, the learned Judge followed two earlier decisions of the Lahore High Court reported in AIR 1928 Lah. 710 (Ram Mal v. Upendra) and AIR 1930 Lah. 599 (Mangi Lal v. Radha Mohan).

12. The said decision was followed by Kerala High Court in AIR 1992 Kerala 85 (P.A Muhammed v. Canara Bank). Considering the scope of Order 23, R. 1, (3) and (4) C.P.C, a learned Judge of the Kerala High Court held thus in paragraphs 7 to 9:—

“No doubt, under O. 23, R. 1, C.P.C “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” (subject of course, to what is contained in the Proviso. Under sub-rule (3), where the Court is “satisfied that the suit must fail by reason of some formal defect, or 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 him 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”. Under sub-rule (4), where the plaintiff “abandons any suit or part of claim, or withdraws from a suit or part of a claim, without the permission referred to in sub-rule (3), he shall be liable for such cost 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”. The Court below held that Rule 1(4) applied to the case and therefore, the suit was barred. But, then, the fact that the second suit was pending when the first suit was dismissed as withdrawn, went unnoticed. The question to decide is whether in such a circumstance, the second suit is barred or not.

As noticed above, sub-rule (4) of Rule 1 of Order 23, C.P.C precluded the plaintiff from instituting a fresh suit where the earlier suit was withdrawn or abandoned without permission of the Court. It is clear that the prohibition is in regard to the institution of a fresh suit after the earlier suit on the same cause of action and been withdrawn without the leave of court. But, where the subsequent suit was pending when the earlier one was dismissed as withdrawn, abandoned or as not pressed, the provisions of O. XXIII, Rule 1, in terms, would be inapplicable.”

In Mangi Lal v. Radha Mohan, AIR 1930 Lahore 599 (2), it was held:—

“Order 23, Rule 1, refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order 23, Rule 1, cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and Can only be applied to suits instituted after the withdrawal of abandonment of previous suits.”

In Girdharilal v. Chairman, BBM Board, AIR 1985 Punj. and Har. 210, the above decision was referred to and approved and it was held that where the second suit was filed before the first suit was withdrawn, then O. 23, R. 1 C.P.C would not be attracted and the second suit could not be dismissed under O. 23, R. (1)(4), C.P.C”

13. In this case, even as per the affidavit, the second suit has already been filed, and learned counsel on both sides agree that a decision has already been rendered by the trial Court and the matter is now pending in appeal. If the subsequent suit has already been filed even before the filing of the C.M.P in this case, the application cannot be really under Order 23, Rule 1(3), C.P.C The appellant has already availed that remedy even without waiting for orders of this Court.

14. But the relief sought for in this application (C.M.P, is couched in such a way that it takes away the legal effect of the decision already rendered by the lower Appellate Court. In the affidavit, what the plaintiff claims is that she may be allowed to withdraw the suit, which is the subject matter of the appeal, with liberty to seek necessary relief in the suit pending on the file of the First Assistant Judge, City Civil Court Madras, in O.S 2258 of 1984. So, from the said prayer, it is clear that what she wanted is to remove the legal effect of the decision. That is why she has sought the relief under Sec. 151, C.P.C also. Even though the second suit has already been instituted, before permission was granted by this Court, and the same was not proper, at the most it can be said to be an irregularity, and that defect also stands cured if ultimately this Court permits the plaintiff to withdraw the suit. The decision relied on by learned counsel deals with the bar of the second suit under Order 23, R. 1(4), C.P.C In those circumstances, it was held that if a suit was already instituted, the bar under Order 23, Rule 1(4) C.P.C cannot apply. This question will also arise only at the time of argument in the second suit already instituted. We are not at that stage. In view of the said provisions, learned counsel submitted that since the suit is already instituted, permission to withdraw the suit cannot be granted. The plaintiff should have waited for permission before instituting the suit. How far the appellate Court is competent to permit the withdrawal of a suit in the above circumstances is to be considered.

15. Sections 107 and 108, C.P.C deal with the power of the first appellate Court as well as the Second Appellate Court. Under Section 107, C.P.C the First Appellate Court is given most of the powers of the original Court also. But, when coming to Section 108, C.P.C, the powers that could be exercised are to the extent that could be made applicable to Second Appeals.

16. In one of the earliest decisions of our High Court reported in AIR 1918 Madras 1287 = (1917) 5 L.W 558 (FB.) (Kamayya v. Papayya) (Full Bench), it was held thus:—

“It is open to an Appellate Court in proper cases when reversing the decree of the lower Court to give the plaintiff leave to withdraw the suit with liberty to file a fresh suit.”

At page 1292 of the Reports, Their Lordships followed an earlier judgment reported in (1891) 18 Cal. 322 (Jogindro Nath v. Sarut Sunduri Debi) wherein it was held thus:—

”… an order of an Appellate Court giving leave to withdraw an appeal and to withdraw the suit with liberty to bring a fresh suit does not merely set aside the first Court's decree, as the term is used in its ordinary sense; it does not substitute anything of the decree which is set aside, but it simply wipes it out and leaves the parties to the determination of the rights in a subsequent suit, and what is done with regard to the first Court's decree is merely ancillary to the rest of the order, which is not a decree.…”

17. The power of the Appellate Court to permit the plaintiff to withdraw the suit cannot be doubted. The only question is, whether such withdrawal should be allowed at this stage, especially when the plaintiff failed to succeed in her attempt to get a decree. Admittedly, the suit is only for an injunction where the only question is, whether the plaintiff is in possession or not. Even in the written statement, the defendants contended that the plaintiff has no title, and they also claim to be in possession. The only question that ought to have been decided in the suit is only regarding possession. When defendants claimed that they are in possession and executed documents in respect of the same, plaintiff filed an application to amend the plaint seeking relief of declaration of title and recovery of possession. The trial Court dismissed the same on the ground that possession of the defendants was already there even before the institution of the suit and, therefore, it cannot be a subsequent event which enabled the plaintiff to seek declaration of title and recovery of possession. In spite of the fact that such an amendment application was dismissed, trial Court thought it fit to grant a decree as prayed for. Once the amendment was dismissed, even at that time, plaintiff could have withdrawn the suit. But it is seen that legal advice persisted for the continuation of the suit and it can be presumed that the legal advice was bona fide given, when the trial Court also passed a decree in her favour. The legal opinion was found to be not correct only in appeal and the Appellate Court dismissed the suit holding that the plaintiff is not in exclusive possession. It is that finding that resulted in the dismissal of the suit and the consequent filing of Second Appeal.

18. Immediately after the filing of Second Appeal, plaintiff has also filed a comprehensive suit for declaration of title and recovery of possession, making all the persons interested in the property as parties to the suit. Parties also joined in issue regarding title, and it was represented that a decree has also been obtained in the subsequent suit by the plaintiff. When the parties are already at issue and they have been fighting tooth and nail on the question of title, I do not think, plaintiff should be debarred from withdrawing the suit with liberty to her to get necessary relief in the subsequently instituted suit.

19. In one of the decisions of the Kerala High Court reported in 1981 K.L.T 438 (Prabhavathi v. Kunhathabi Umma), a learned Judge has held thus in paragraph 14:—

“It is well-known that plaints are drafted by counsel; and so long as infallibility is not a universal virtue, a mistake committed by counsel should not be the undoing of the client in every case. Where the Court is satisfied that a bonafide error is committed, that high stakes are involved, and that it would be unjust on the facts and circumstances of the case to allow the defendant to take advantage of such an error, it must have the power to do what is just; and that is one thing that clause (b) permits…”

20. In a subsequent decision of the same High Court reported in 1987 (1) Kerala Law Times page 574 (Amminikutty v. George Abraham), the Court held that ‘an appeal is a continuation of the suit and the Appellate Court is also competent to grant permission to withdraw the suit’. Learned Judge further went on and said in paragraph 9 of the judgment as to what will be the effect of withdrawal after the plaintiff suffered a decree. A contention similar to the one raised by the learned Counsel for respondents herein was raised in that case also, i.e, the plea of res judicata. In paragraph 9 of the judgment, the learned judge held thus:—

“The last contention is that the Rule provides for grant of permission to withdraw a suit, only when a fresh suit is to be instituted, and not for grant of permission after the institution of such a second suit. The purpose and object of the Rule has already been considered; and if the Court is competent to relieve a plaintiff of the adverse consequences of mistakes committed by him in instituting or proceeding with a suit, it is not really material whether the permission is granted before or after the institution of a fresh suit. Even if the institution of the second suit before obtaining of permission to withdraw the first is not proper, that can at best only be an irregularity, which should be considered as cured at least from the time permission is obtained. It is settled law that grant of permission under the Rule is no guarantee for the maintainability of the second suit; that is a question which will have to be decided separately, as and when it is raised in the subsequent proceedings. Even at the risk of repetition, it is to be stated that where a suit is allowed to be withdrawn, it should be regarded as having never been brought; grant of permission serves no other purpose like providing for the start of a new point of limitation or giving rise to a new cause of action. The whole object is to ensure that a fair trial is not shut out, and in this context, “it is of no consequence that the suit which is to ultimately determine the rights of parties is brought before the withdrawal of the earlier one.”

(Emphasis supplied)

In the earlier portion of the judgment, the learned Judge considered as to how far the vested rights will be affected and how far the argument can hold good. As in this case, the suit which came for consideration before the learned Judge was also one for injunction where there was some dispute as to title. While considering the same, the learned Judge has held thus:—

“It is then contended that in as much as the dismissal of O.S 103/80 had conferred on the defendants a “vested right” to raise a plea of res judicata in any subsequent suit as regards title, the deprival of that right by the order in the I.A was totally impermissible. There are at least two answers to this contention. The first is that the suit was for injunction, and consequently, the observations of the trial Court on title were insufficient to operate as res judicata. The other is that even assuming that there could be such vested rights, all such rights can only be subject to the provisions of the statute. Order 23 Rule 1 does not stipulate that the power thereunder cannot be used for destroying vested rights. The most that could therefore be suggested is that while exercising its discretion under the rule, the Court should take into account all relevant circumstances and act in a judicial manner. To place fetters on the court's power, which are not there in the statute, will be to add to the statute and not to interpret it.”

The said decision came for consideration in a very recent decision of the Kerala High Court reported in (1997)1 Haji P. Abdul Rahiman & Ors. v. Dr. K.P Narayanan) wherein a learned Judge of the Kerala High Court held thus:—

“It is clear from the provisions of Order 23 Rule 1 of C.P.C that the discretion vested in the Court to permit withdrawal of the suit with liberty to institute fresh suit on the very same cause of action even at the appellate stage is based on the principles of public policy and not on the principles of res judicata. While evaluating whether there is sufficient ground to grant permission to withdraw with liberty to file a fresh suit on the very same cause of action the Courts of law should see that the provision under Order 23 Rule 1 of C.P.C is not made a weapon in the hands on cantankerous litigant to harass the opposite party by abusing the process of law. If, in fact, under Order 23 Rule 1(3) the suit must fail by reason of some formal defect or that “there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the same cause of action, then only discretion is vested in Court to permit to withdraw the suit or any portion of the claim thereof. It is pertinent to note that when the suit is allowed to be withdrawn with liberty to file fresh suit on the same cause of action, the parties are relegated to the position before the institution of the suit and the effect of the decree, if any, passed against the plaintiff is erased by granting such permission.”

21. In view of the above settled legal position, I hold that the suit was initially instituted for injunction. When defendants claimed to be in possession, plaintiff sought an amendment. That was also dismissed on the objection of the defendants themselves. Plaintiff bona fide prosecuted the suit even after dismissal of the amendment application. That bona fide belief of the plaintiff was further strengthened when the trial Court passed a decree in her favour. But the reasoning of the trial Court did not find favour with the lower Appellate Court, and it dismissed the suit. So, naturally plaintiff thought that it is better to have a finality by filing a properly instituted suit, and that too on the basis of the contentions taken by defendants. I feel that interests of justice require that the plaintiff should be permitted to prosecute the subsequently instituted suit and further permit her to seek the relief which is asked for in that suit. The decision in this suit or the findings rendered herein should not be a bar for her prosecuting the subsequent litigation. I further hold that being a suit for injunction, the question of title or ownership as regards the building, etc. was also unnecessary. I feel that this is a fit case where permission sought for should be granted. C.M.P No. 11306 of 1985 is accordingly allowed. Consequently, nothing survives in the Second Appeal. In view of my order in C.M.P aforementioned, the Second Appeal is dismissed as infructuous.

22. Since the defendants are now compelled to fight another litigation after a lapse of more than 13 years, I feel it is proper to award costs to them. The respondents are allowed their costs in this Second Appeal.

KA/RR/VCS