Manohar Singh v. Mst. Sardar Bai

1. This appeal by the plaintiff Manohar Singh is directed against the judgment and decree of learned District Judge, Udaipur dt. 11-7-1975. When the suit was filed Manohar Singh had claimed 1/3 share in the immovable property which consisted of a house belonging to the Joint Hindu Family. According to the plaintiff Manohar Singh the house was a Joint Hindu Family Property in which he, his brother Ganeshlal and their mother Badanbai had 1/3 share each. It may be mentioned at this stage that one Khubilal had purchased 1/2 share of Ganeshlal in an auction sale in a decree against Ganeshlal. A preliminary decree was passed by Senior Civil Judge, Udaipur on 2-6-1960 declaring 1/3 share of the plaintiff in the joint family property. An appeal was preferred against this judgment by the legal representatives of Khubilal and this Court by judgment dt. 30-9-1970 in S. B. Civil Regular First Appeal No. 144/60 Basantilal v. Manohar Singh, set aside the judgment and decree passed by the Civil Judge and remanded the case for giving a decision afresh. After the remand of the case Smt. Badanbai expired and in these circumstances learned District Judge held that both Manohar Singh and Ganeshlal now being entitled to 1/2 share in the property, a preliminary decree declaring Manoharsingh and Ganeshlal having 1/2 share each in the property in dispute was passed for partition. It was also held by the learned District Judge that 1/2 share belonging to Ganeshlal had been purchased by Khubilal and as such his successors would be entitled to 1/2 share belonging to Ganeshlal.

2. Aggrieved against the aforesaid judgment this appeal has been filed by the plaintiff. Mr. Shishodia learned counsel for the appellant first contended that the plaintiff had submitted an application on 30-1-1975 under Order 23, Rule 1. C.P.C. for withdrawing the suit. The trial Court dismissed that application by order dt. 15-3-75. It was argued that the plaintiff had an absolute and unqualified right to withdraw the suit under Order 23, Rule 1, Sub-rule (I), C.P.C. and there was no necessity of obtaining any permission from the Court and the trial Court was wrong not to give permission for withdrawing the suit. Mr. Shishodia in this regard placed reliance on Hulas Rai v. Firm K.B. Bass & Co. (AIR 1968 SC 111). This case was instituted for rendition of accounts by a principal against his agent. The plaintiff submitted an application for withdrawing the suit. Their Lordships of the Supreme Court in this case observed as under : --

"In a suit for rendition of accounts by principal against his agent the principal is entitled to withdraw the suit even at the stage when issues have been framed and some evidence has been recorded but no preliminary decree for rendition of accounts has yet been passed. The defendant cannot insist that the plaintiff must be compelled to proceed with the suit. AIR 1934 Mad 337, Explained and Disting. AIR 1963 All 368, Affirmed.

The language of Order 23, Rule 1, Sub-rule (1) gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is sought under Sub-rule (2) of that Rules, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under Sub-rule (3) of that Rule. There is no provision in the Civil P.C. which requires the Court to refuse permission to withdraw the suil in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.

Further in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree from the principal."

3. In rny view the above case is distinguishable from the case in hand which is a suit for partition of joint family property. In a suit for rendition of accounts by the principal against its agent, their Lordships have observed that in a case of a suit between principal and agent it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree from the principal. In this background when the principal wanted to withdraw the suit for rendition of accounts against an agent it was held that Order 23, Rule 1. Sub-rule (1) gave an unqualified right to a plaintiff to withdraw from a suit and no permission is necessary under Sub-rule (2) of Order 23, C.P.C.

4. The position in a suit for partition of immovable property filed by a joint coparcener stands on a different footing altogether. In such suit for partition of immovable property even the defendants have the same right to claim partition and it is not material as to in what manner the parties are arrayed as plaintiffs or defendants in the suit. Even the defendants can be transposed as plaintiffs and can continue the suit if they feel that the plaintiff is not continuing the suit in their interest. Thus in such kind of suit no absolute right can be held in favour of the plaintiff of withdrawing a suit under Order 23, Rule l, C.P.C.

5. In R. Ramamurthi v. Rajeshwararao, (AIR 1973 SC 643) their Lordships had placed reliance on the following observations of Crump J. in Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel (AIR 1925 Bom 425) :--

"But there are other and wider considerations which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants' claim. It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another (Order XXIII, Rule 1(4))."

It was further observed by their Lordships,--

"It has further been emphasised that in a partition suit the plaintiff is not wholly dominus lit is and even on the assumption that Section 3 confers a privilege or an option on the shareholder who is a defendant in a suit for partition the plaintiff is debarred from defeating the exercise of that privilege or option by resorting to the device of withdrawing a suit under Order 23, Rule 1."

Their Lordships of the Supreme Court in the above case had quoted with approval the observations of Crump J. It was further observed by their Lordships of the Supreme Court,--

"Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendant's claim which according to Crump J. cannot be done even in a suit where the provisions of the partition act have not been invoked."

6. Learned District Judge also dismissed the application filed by the plaintiff for withdrawing the suit by order dt. 15-3-1975 in which detailed reasons have been given.

7. The present litigation was going on for the last 15 years and even the case had been remanded by the High Court on 30th Sept. 1970 and it does hot lie in the mouth of the plaintiff to withdraw the suit by filing an application on 30-1-1975.

8. The next contention raised by Mr. Shishodia is that the shares of the parties should have been determined on the date when Khubilal had purchased the share in auction sate. It is contended that on that date Smt. Badanbai was alive and as such Ganeshlal could have only 1/3 share in the property which could have been sold in the decree against him. I see no force in this contention. So far as the auction sale is concerned it was clearly mentioned that 1/2 share of Ganeshlal in the house property is sold. Khubilal was an auction purchaser and he had purchased 1/2 share in the auction sale. Now so far as the question as to whether Ganeshlal at that time had only 1/3 share or 1/2 share remains of academic importance as admittedly Badanbai has already expired and there is no dispute that her share also devolved equally between the two sons Manohar Singh and Ganeshlal. It is a suit for partition filed by Manohar Singh and on the date when preliminary decree is to be passed the court has to see as to what share should be given to each one of the parties. Thus on 11-7-1975 when the Court was called upon to pass a preliminary decree in a suit for partition, it remains of no controversy that both Manohar Singh and Ganeshlal had only 1/2 share each in the property and Khubilal having purchased 1/2 share of Ganeshlal was entitled to a decree of 1/2 share in his favour.

9. In the result I find no force in this appeal and it is accordingly dismissed with costs to the legal representatives of Khubilal.