Bangaru Patttabhirmayya and Others vs Bangaru Gopalakrishnayya and Others

P.A. Choudary, J.—One Bangaru Gopalkrishnaiah filed O.S. No. 57 of 1966 on the file of the Subordinate Judge, Narsapur, That suit was for partition and separate possession of his share of the plaint schedule properties which stood alienated in favour of the 8th defendant under a document dt. 11-7-1978. The consideration under that impugned sale was received by the 4th defendant. In the suit filed by Bangaru Gopalakrishnaiah, the appellants herein, were added as the defendants 5 to 7 because these appellants-defendants along with the plaintiff were admittedly entitled to equal shares in the suit properties. The defendants 5 to 7 in an effort to promote their interests have supported in their written statement the claim of the plaintiff for partition of suit properties among the various sharers and claimed their share in them and also sought the cancellation of the alienation of the suit properties in favour of the 8th defendant.

The suit developed teething troubles. The first complication was caused by the 4th defendant filling I.A. No. 674 /1970 seeking to have the suit claim compromised in terms of an alleged compromise which the defendants. 5 to 7 opposed . The proposal of the 4 the defendant was, no doubt, in his interests, but not without detriment to the defendants 5 to 7. Added to this complication was the further complication caused by the death of the 8th defendant. The death of the 8th defendant had necessitated bringing on record of his legal representatives. Applications for that purpose were taken out, but not yet ordered. Without adjudicating the above two sets of application the suit cannot be taken up for trial. For disposing of such interlocutory applications, out system of unit accounting adopted by the High Court to assess the work ability of the lower Courts offers only disincentives to the subordinate Courts. All in all, the suit made no progress. All those miscellaneous applications were being posted from time to time for inquiry. When some of those miscellaneous matters were thus posed on 13-9-1976, the 4th defendant , the maternal grand-father of the present appellants, using his vast experience of court-craft accumulated over the years, had brought the plaintiff into the court even without the knowledge of the plaintiff''s lawyer and got a memo filed withdrawing the suit itself. No notice of that withdrawal memo, was given to defendants 5 to 7 nor was the plaintiff''s lawyer made aware of it. Indeed the plaintiff''s lawyer did neither sign the memo, nor was he present in the Court. Everything was done by the grandfather in utmost secrecy. Secrecy, they say, is the badge of fraud. The lower court ought to have suspected something foul. The lower Court ought not to have passed any orders on such a memo, without notice to the defendants, particularly when the main suit was not formally posted before the court on that day for trial. Ignoring these safety precautions, the lower Court ordered the memo. And dismissed the plaintiff ''s suit as withdrawn. As a result of the order of dismissal of the suit passed by the Court the right of the defendants 5 to 7 to get themselves transposed as plaintiffs in the suit and continue the same and get their lawful share in the suit property had all been lost. The defendants 5 to 7 , had, therefore, filed I.A.No.736 of 1976 under O.9.R.9 and O.9 R.13 CPC to set aside the order of the trial court dt. 13.9.1976 dismissing the suit treating that order as having been passed ex parte. The plaintiff and the 4th defendant filed a counter contesting above I.A.No. 736 of 1976. The plaintiff and the 4th defendant supported the order of the Court dismissing the suit on the theory the plaintiff had undoubted right under O. 23 , CPC to withdraw his suit and that therefore the order of dismissal passed by the trail court on 13-9-1976 was unimpeachable. Having been aggrieved by that order of the trial Court dismissing the said I.A. 736 of 1976 the defendants 5 to 7 had filed the present C.M.A. under O. 43 R. 1 of the Civil P.C. It may be admitted that the application filed by the present appellants-defendants in the court below under O.9.R.9 and O.9. R. 13 read with S. 151 of CPC is not competent, because none of those provisions of Civil P.C. would apply to the facts of this case. O.9 R.9 CPC applies to a situation where the suit was dismissed by a Court for the reason that the defendant appears and the plaintiff does not appear. That is not the case here. Similarly, O.9. R. 13 C.P.C. deals with a situation where a court makes an ex parte decree against the defendant on the ground that he does not appear. Even that provision does not apply, because no decree was passed on 13-9-1976 against the defendants. It follows that O. 43, R. 1CPC which provides for a rights of appeal against any orders made under O.9 R.9 or O.9 R. 13 CPC will have no application to the facts of this case.

This Civil Miscellaneous Appeal is, therefore not competent. But that is not the end of the matter, as we are of the opinion that the order of the lower court dismissing the plaintiff''s suit without notice to the defendants is one passed without jurisdiction., Accordingly, we treat this Civil Miscellaneous Appeal as a Civil Revision Petition filed under S. 115 CPC and proceed to consider the correctness of the order passed by the Court below.

In a Civil Revision Petition under S. 115 CPC , the first question that should be considered is whether the orders passed by the lower court are without jurisdiction. We, therefore , examine in this case whether the lower court acted without jurisdiction in allowing the plaintiff to withdraw his partition suit without giving any notice to the defendants.

The plaintiff in this case made his application to withdraw the suit under O. 23the CPC O. 23 R. 1, CPC, reads thus:--

"(1) 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:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rr. 1 to 14 of O. XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-r. (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) 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.

It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the claim.

(4) Were the plaintiff:

(a) abandons any suit or part of claim under sub-rule (1) or

(b) withdraws form a suit or part of a claim without the permission referred to in sub-rule (3)

he shall be liable for such costs 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.

(5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1) , or to withdraw, under sub-rule (3) any suit or part of a claim, without the consent of the other plaintiffs."

Ordinarily, the plaintiff in a suit has an undoubted right to withdraw the suit either with or without the consent of the Court. The language of O. XXIII generally supports such a right. It speaks of the right of the plaintiff to withdraw the suit in whole or in part against all or some of the defendants at any time after the institution of the suit. The right thus appears to be almost complete, barring the exception noted in sub-Cl. (5) or O. XXIII R. 1, CPC. But that these first appearances are wholly deceptive can easily be found by reading O. XXII R. 1, CPC, closely. Under sub-Cl. (4)Where the plaintiff abandons any suit or part of a claim under sub-r. (1) or withdraws from a suit or part of a claim without the permission referred to in sub-r. (3) he is made liable to pay such costs to the defendant as the Court may award. Now, clearly sub-Cl. (4), if it were to be given effect to, would not permit the Court to allow the plaintiff to withdraw the suit without notice to the defendant. The quantification of costs payable by the plaintiff would at least require notice to be given to the defendant. That implies that the plaintiff''s exercise of his right to withdraw the suit should only be in the presence of the defendants. Sub-cl . (1)(a) is another provision of law which was introduced with effect from 1-2-1977 and which therefore would not apply to the facts of the present case but which works against the theory of unlimited right of the plaintiff to withdraw the suit. Under sub-cl. 1(a) a defendant may apply to be transposed as a plaintiff under O. 1 R. 10, CPC and if permitted by the Court, may continue the suit, Sub-cl. 1(a) again contemplates notice being given to the defendant on the plaintiff''s application to withdraw his suit. Independent of sub-cl. 1(a) a defendant can always apply under O. 1 R. 10 CPC to transpose himself as a plaintiff to withdraw his suit. The above would again operate as a limitation on the power of the plaintiff to withdraw his suit. The above would clearly show that the general language of O. XXIII R. 1, CPC couched in wide terms cannot be read literally. Literally read O. XXIII R. 1, no doubt recognises a vast and unlimited right of the plaintiff to withdraw his suit. But no court till today is prepared to read this language of the CPC literally and grant this right to the plaintiff. Even those cases which have vastly leaned in favour of the plaintiff''s right to withdraw, did not accept an unlimited right of the plaintiff to withdraw the suit. On the other hand, there are cases which have expressly held that O. XXIII R. 1, , CPC should not be read literally and the plaintiff''s right to withdraw his suit may have to be limited by the fact that allowing plaintiff''s right to withdraw his suit may have to be limited by the fact that allowing plaintiff''s exercise of his right to withdraw the suit without notice to the defendant may injure the* interests of the defendants. 6. In Allu Appalaswamy v. Maturi Anjaneyulu, (1974) 1 APLJ 55 : (AIR 1974 Andh Pra 268) a Division Bench of this Court was confronted with the question whether a plaintiff has the right to withdraw his partnership suit before a preliminary decree was passed. The matter came before the Division Bench on a reference because of a conflict of opinion between two judgments of the same learned Judge in C.R.P. 2108/63 dated 23-4-1970 reported in V. Narasthham v. G. Narayana, 1971 APH (Notes) 134 and Kasaraneni Sri Ramamurthy v. Alapati Rattiah, (1969) 1 APLJ 138.

In Kasaraneni Sri Ramamurthy''s case the learned single Judge denied the right of the plaintiff to withdraw his partnership suit even though in that suit no preliminary decree was passed by that time. The learned Judge observed : "It is not only the plaintiff but also the defendants that are entitled to have their rights, if any, enforced in suits for settlement of accounts, dissolution of partnership and the like". But, in Narasimham''s case the same learned Judge took a different view. The Division Bench in Appalaswamy''s case (AIR 1974 Andh Pra 268) took the stand that a plaintiff in the partnership suit is free to withdraw the suit before a preliminary decree is passed. In doing so, the Division Bench heavily relied upon a judgment of the Supreme Court in Hulas Rai v. K. B. Bass & Co., AIR 1968 SC 111. In Hulas Rai''s case, a firm called K. V. Bass & Co. the respondent before the Supreme Court instituted a suit for rendition of accounts against Hulas Rai on the basis that Hulas Rai acted as an agent for the respondent-company and was liable to account for the plaintiff for the transactions. The defence set up by Hulas Rai in that case was that the accounts were all settled and that a sum of Rs. 10,677/- and odd was found due to the appellant from the plaintiff-Bass & Co. After the trial proceeded to a considerable extent, the plaintiff applied to the Court to withdraw his suit on the ground that in view of the alleged collusion of one of its partners, it did not hope to prove its claim against Hulas Rai. This application of the plaintiff was allowed by the Supreme Court confirming the lower Court''s order. In doing so, the Supreme Court no doubt observed (para 2) : "The language of 0.23, R. 1, sub-r. (1), CPC 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 Rule, 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-r. (3) of that Rule. There is no provision in the CPC which requires the Court to refuse permission to withdraw the suit 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 O. 8, CPC or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit." The Supreme Court also observed that there is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, in fact, the appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. This judgment of the Supreme Court was understood in Appalaswamy''s case (AIR 1974 Andh Pra 268) as recognising an absolute right in favour of the plaintiff to withdraw his suit at any stage certainly before a preliminary decree is passed. In our opinion, that reading of the judgment in Hulas Rai''s case (AIR 1968 SC 111) by our Division Bench in Appalaswamy''s case (AIR 1974 Andh Pra 268) may not be correct. Expressly, Hulas Rai''s case mentions two exceptions under which the plaintiffs right'' to withdraw his suit cannot be exercised absolutely. One is the case where a set-off was pleaded under O. 8, CPC and another is a case where a counter-claim had been filed The mentioning of these two exceptions by the Supreme Court in Hulas Rai''s case, in our opinion, would show that the language of O. 23, R. 1, CPC is not intended by the Supreme Court to be given its literal meaning. If set off or counter-claim is read as a limitation operating on the language of O. 23, R. 1, sub-cl. (l)equally the other provisions of Civil P.C. such as O. 1, R. 10 or even other statutory provisions contained in such Acts as Limitation Act recognising the transposition of parties, subject to the applicable law of limitation, can also be read as operating as limitations an O. 23, R. 1, sub-cl. (1), CPC. In fact, that is how a Division Bench of the Calcutta High Court read the judgment of the Supreme Court in Hulas Rai''s case and denied the plaintiff as uninhibited right to withdraw his suit at any time.

In Ajita Debi v. Hossenara Begum, AIR 1977 Cal 59 a Division Bench of the Calcutta High Court refused to read the language of O. 23, R. 1, sub-cl. (1) literally and denied the plaintiffs absolute right to withdraw his suit in the following terms : "In our view, where an application has been made under 0. XXIII, R. 1 the plaintiff is entitled to withdraw his suit and the defendants cannot be heard to oppose such prayer. But the said legal right of the plaintiffs to withdraw the suit is not unconditional or absolute. The Court can only exercise its jurisdiction in favour of the plaintiffs where the interests of the-defendants are not adversely affected in any way if the plaintiffs are allowed to withdraw the suit. To illustrate, in a partition suit by a sole plaintiff against defendants, the former cannot be allowed to withdraw the suit inasmuch as a defendant having a cause of action against such plaintiff, may be allowed to be transposed as plaintiff in the suit. Reliance may be placed on Bhupendra Narayan Sinha v. Rajeshwar Prasad, 58 Ind App 228 at p. 229 : AIR 1931 PC 162. The Judicial Committee in this case held that transposition of a party under O. 1, R. 10 should be allowed where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. Similarly, in a suit under S. 92 of the Code a plaintiff is not allowed to withdraw the suit if one of the defendants makes an application to proceed with the suit after being transposed as a plaintiff. Reliance may be placed upon, AIR 1920 Mad 732. Similar situation may arise in a suit for accounts of a firm by a Partner. We are, therefore, satisfied that where an application simpliciter has been made under O. XXIII, R. 1 the Court cannot compel the plaintiff to proceed with the suit and the defendants cannot be allowed � to complain against such order. But where there is an affinity or identity of interests between the plaintiffs and one or more of the defendants, the plaintiffs cannot be allowed to withdraw the suit if an application on behalf of such defendants having an interest in the suit is made for their transposition to the category of plaintiffs and for transposition of the plaintiffs to the category of the defendants under O. 1, R. 10." The observations of the Calcutta High Court that "(in) a partition suit by a sole plaintiff against defendants, the former cannot be allowed to withdraw the suit inasmuch as a defendant having a cause of action against such plaintiff, may be allowed to be transposed as plaintiff in the suit" are opposite to the facts of the present case. The judgment of the Division Bench of the Calcutta High Court in Ajita Debi''s case (AIR 1977 Cal 59) is a plain authority for the proposition that the existence of the affinity or identity of interests between the plaintiff and the defendant may operate as a limitation on the power of the Court to permit the plaintiff to withdraw his suit. In other words, the Calcutta High Court is laying down the proposition that the plaintiff, in certain circumstances, can withdraw his suit only with the leave of the Court and such a leave cannot and should not be granted by the Court without notice to the defendants where the defendants can apply to transpose themselves as plaintiffs. It follows that the principles should apply to all genuine partition actions where every party is regarded to be in the position of the plaintiff.

A Division Bench of this Court consisting of Madhava Reddy, J. (as he then was and Narasinga Rao J. in Princess Fatima Fronzia v. Sri Sayeed-ul-Mulk Alias Nawab Saheb Chatiari, (C.M.A. No. 147/78 dt. 12-6-78)* laid down a similar rule, limiting the right of an appellant to withdraw his suit. In that case the Division Bench laid down that: "If an appellant has an unconditional right to withdraw the grounds which have impelled him to withdraw are proper or not, the Court cannot refuse permission to withdraw. But at the same time if the suit or proceeding is in effect a representative one, the appellant petitioner cannot thereby put an end to all the proceedings taken up to that point or that would be logically followed. The right of the appellant to withdraw the appeal is one thing *Reported in (1978) 2 Andh LT 124 : (AIR 1979 NOC 32) and the power of the Court to allow another person, who has an interest similar to that appellant to continue the suit, appeal or proceeding is another. On account of such withdrawal, the suit or appeal does not terminate. It is the plain duty of the Court to implead the parties concerned either under O. 1, R. 10, CPC or in exercise of its undoubted inherent power under S. 151, CPC."

Applying the above to the facts of the present case, we find that the lower Court acted without jurisdiction in granting permission to the plaintiff to withdraw the suit without giving notice to all the defendants. If the defendants had been given notice, they would have in all probability, subject to the law of limitation, transposed themselves as plaintiffs and continued the suit making the plaintiff a defendant, if necessary. They would have thus saved and safeguarded their lawful interest. By permitting the plaintiff to withdraw his suit even without notice to the contesting defendants the Court has clearly denied the defendants their lawful right.

In Asian Assurance Co. v. Madholal, AIR 1950 Bom 378, Chagla, C. J. speaking for a Division Bench of the Bombay High Court laid it down that: "An application under O. 23, R. 1 must always be made in open Court and the order must be made in Court. In our opinion no order under O. 23, R. 1(2) should ever be made without hearing the other side." The principle of natural justice which applies to Court requires that judicial orders should be made only after hearing the parties. The powers of the Court under O. 23, R. 1, CPC can never be exercised, except in conformity with principles of natural justice. As the order in the present case has been made by the lower Court without notice to the defendants 5 and 7 we consider it as another ground debilitating the efficacy of the order under revision.

Accordingly, we allow this Civil Miscellaneous Appeal treating it as a Civil Revision Petition and set aside the lower Court''s order dt. 13-9-76 dismissing O.S. 57/76 and direct the lower Court to restore O.S. 57/76 to its file and take up for consideration the memo filed by the plaintiff to withdraw his suit after giving notice to the defendants. The C.R.P. is accordingly allowed with costs