Harbhajan Kaur vs Tejinder Singh And Others

Raj Mohan Singh, J

[1]. Plaintiff is in regular second appeal against the concurrent judgments and decrees passed by the Courts below.

[2]. Plaintiff filed a suit for declaration and permanent injunction to the effect that she is in exclusive possession of the suit property on the basis of

Will dated 18.12.2001 executed by Teja Singh in a sound disposing mind during his life time. Plaintiff also challenged the order dated 17.03.2003 in

respect of mutation No.1257 of village Khusropur and order dated 30.12.2002 regarding mutation No.2034 of village Sansarpur, Tehsil and District

Jalandhar passed by the Assistant Collector, IInd Grade, Jalandhar being ex parte, illegal and against the principles of natural justice. Plaintiff also

sought restraint against the defendants from interfering in her peaceful possession over the suit property. The suit was filed through general power of

attorney namely Harpreet Singh.

[3]. Defendant No.1 contested the suit. The suit was dismissed qua defendant No.2 under Order 9 Rule 2 CPC on 07.01.2008 and the plaintiff

withdrew the suit against defendant No.3 by making a statement on 21.07.2006. Defendant No.1 contested the suit on all grounds denying the Will

dated 18.12.2001 allegedly executed by Teja Singh. Even the title of Teja Singh was denied. Defendant No.1 claimed that the house is ancestral house

which was inherited by Teja Singh from his forefathers and the same being ancestral had devolved upon all the coparcenars to the extent of their

shares. Defendant No.1 contested the plea of Teja Singh being exclusive owner in possession of the suit property. The property as shown in headnote

'B' was purchased by Dalip Kaur wife of Teja Singh vide registered sale deed dated 29.12.1970 and after her death, the same was devolved upon her

legal heirs. On this premise, it was claimed that the plaintiff cannot claim the house to be owned and possessed by Teja Singh. The suit properties as

shown in headnote 'C' and 'D' were illegally added in the suit. The agricultural land was ancestral in nature and the same had devolved upon Teja

Singh in inheritance from his forefathers, therefore, every coparcenar had a right by birth and Teja Singh alone was not competent to execute any Will

in respect of property in question. Defendants No.1 and 2 claimed themselves to be sons of Teja Singh and coparcenars in the ancestral property

situated in the revenue estate of village Sansarpur. Teja Singh was joint in mess with the answering defendant No.1 and answering defendant was

looking after the deceased at the time of his death. Strained relations of defendant Nos.1 and 2 with Teja Singh were denied and it was also denied

that Teja Singh was not having speaking terms with his sons.

[4]. After framing of issues, both the parties went to trial on definite issues.

[5]. Plaintiff only examined Harpreet Singh i.e. general power of attorney of the plaintiff as PW 1.

[6]. The suit was dismissed under Order 9 Rule 8 CPC on 20.10.2010. An application for restoration of the suit was filed to which, learned counsel for

the defendant made statement that he has no objection in case the application for restoration of the suit is allowed. Accordingly, the suit was restored

to its original number and was fixed for plaintiff evidence. Plaintiff did not lead any evidence despite the statement made by learned counsel for the

plaintiff that he would conclude the evidence on 19.05.2014. Costs were also imposed. Despite that, neither the evidence was led by the plaintiff, nor

the amount of cost(s) was paid. General power of attorney namely Harpreet Singh (PW 1) was examined-in-chief only. He was not cross-examined

and the evidence of the plaintiff was closed by order of the Court. Finding no evidence on behalf of the plaintiff, the suit was dismissed by the trial

Court under Order 17 Rule 3 CPC.

[7]. Plaintiff filed an appeal along with an application under Section 5 of the Limitation Act before the Lower Appellate Court. The application for

condonation of delay was dismissed by the Lower Appellate Court vide order dated 21.04.2017. The said order was assailed by the plaintiff in CR

No.4144 of 2017 which was accepted by this Court vide order dated 29.08.2018. Delay of 109 days in filing the appeal was condoned subject to

payment of costs of Rs.15,000/-. Parties were directed to appear before the Lower Appellate Court for decision on merits. Thereafter, the

plaintiff/appellant filed an application before the Lower Appellate Court for withdrawal of the suit itself with a liberty to file fresh suit on the same

cause of action. The said application was dismissed by the Additional District Judge, Jalandhar vide order dated 08.05.2019. Against the said order,

CR No.4089 of 2019 was filed in this Court. The said revision petition was dismissed as withdrawn vide order dated 22.08.2019 on the statement

made by learned counsel for the plaintiff that the appeal had already been decided. Thereafter, present regular second appeal along with an application

under Order 23 Rule 1 read with Section 151 CPC was filed for permitting the plaintiff/appellant to withdraw the original suit with a liberty to file fresh

suit after obtaining the probate of the Will.

[8]. On merits, it is a case of no evidence on record, except the examination-in-chief of PW 1 Harpreet Singh who was not produced for cross-

examination.

[9]. Learned counsel for the appellant stated that the appeal is a continuation of suit proceedings, therefore, provisions in terms of Order 23 CPC can

be resorted to at the appellate stage as well. Appellate Court can allow the plaintiff to withdraw the suit as the suit itself was suffering from technical

defects.

[10]. Perusal of the record would show that the suit was dismissed by the trial Court for want of any evidence. Plaintiff sought to appear through her

general power of attorney namely Harpreet Singh who appeared as PW 1, but after recording his examination-in-chief, he did not come present for his

cross-examination. The suit was dismissed under Order 17 Rule 3 CPC. Plaintiff was negligent throughout. Even the provisions in terms of Order 23

Rule 1(3) CPC cannot be utilized by the plaintiff as the same would have the effect of nullifying the decree passed by the trial Court under Order 17

Rule 3 CPC. A valuable right has been accrued in favour of the defendants.

[11]. In Baru Ram Vs. Baldeva, 1994 PLJ 144, the controversy was considered by this Court on the parameters of Order 23 Rule 1 CPC and the

prayer was declined. The said provision cannot be allowed to be utilized by the plaintiff who was negligent throughout. The object of the provision is to

permit the plaintiff to have a fair trial on merits in case where the defect is merely a technical defect and the same can be rectified only by a de novo

trial, but in case, the plaintiff wants to avoid his/her previous negligent conduct and the defect has occurred due to plaintiff's own fault resulting in

passing of decree against him/her, then the withdrawal of the suit with a liberty to file fresh suit on the same cause of action at appellate stage cannot

be allowed as in such eventuality, defendants would be deprived of their legal defence in terms of Order 2 Rule 2 CPC. If the plaintiff was well aware

of the defect (if any) and still she persisted with the suit and only examined her general power of attorney, then the plaintiff herself invited the decree

under Order 17 Rule 3 CPC. In such circumstances, Order 23 Rules 1 and 2 CPC cannot be resorted to. Reference can be made tPo iar Ram and

another Vs. Ganesh Dass and others, AIR 1967, Punjab and Haryana 237.

[12]. It is a settled principle of law that once a decree is passed by the trial Court and the same is challenged in appeal, it would not be open to the

plaintiff to withdraw the suit so as to destroy the decree and rights which have come to be vested in the defendant(s) to the suit unless a very strong

case is shown that it would not affect or prejudice anybody's vested rights. The ratio as laid down in R. Rathinavel Chettiar Vs. Sivaraman, 1999(2)

RCR (Civil) 447 can be relied in this context.

[13]. Plaintiff has no unqualified or unfettered right in terms of Order 23 Rule 1 CPC to withdraw the suit at appellate stage as a valuable right has

accrued in favour of the defendants under the decree of the trial Court.

[14]. In the instant case, after dismissal of the suit, the plaintiff preferred an appeal along with an application under Section 5 of the Limitation Act.

Initially, the appeal was dismissed as time barred, but the delay was allowed to be condoned by this Court in CR No.4144 of 2017 on 29.08.2018. In

the event of allowing withdrawal of the suit at this stage, a valuable right in terms of Oder 2 Rule 2 CPC available to the defendants and plea of res

judicata would become meaningless. The right of the plaintiff to withdraw the suit at appellate stage is not an absolute right, but the same is subject to

the condition showing a very strong case where no prejudice is shown to have been caused to the defendants.

[15]. In the instant case, prejudice will certainly be caused to the defendants as in the event of filing the fresh suit, they would be deprived of their

legal plea of res judicata and valuable right in terms of Order 2 Rule 2 CPC. Valuable rights available to the defendants would come to an end without

there being any adjudication of appeal against the decree of the trial Court on merits. The decree passed by the trial Court cannot be allowed to be

nullified by way of accepting the application under Order 23 Rule 1 CPC at the stage of regular second appeal.

[16]. For the reasons recorded hereinabove, I do not find any justification to accept the application under Order 23 Rule 1 CPC at the stage of regular

second appeal. Since it is a case of no legal evidence on record, therefore, regular second appeal is found to be totally devoid of merits. No question of

law worth consideration is involved in the present appeal. This appeal is accordingly dismissed.