Parasmal Surana (Jain) vs Raghuveersingh & Another

The applicant/plaintiff has filed the present revision u/s. 115 of the C.P.C. against the order dated 20.12.2017 passed by 5th Additional District Judge,

Ujjain in Civil Appeal No.16-A/2017 by which his application under Order 23 Rule 1 of C.P.C. seeking withdrawal of civil suit has been dismissed.

Facts of the case, in short, are that the applicant/plaintiff filed the suit for declaration and permanent injunction against the respondents/defendants.

According to the plaintiff, the defendant No.1 is an owner of Shop No.11, Guru Nanak Market, Ujjain and he is tenant therein since 1984 and regularly

paying the rent @ Rs.455/per month. The plaintiff has alleged that the defendants are trying to evict him forcibly so that they can give the shop on

higher rent to some other person and for the same, they are taking assistance of antisocial elements; there is a relationship of landlord and tenant

between them, therefore, he cannot be evicted forcibly. Plaintiff served a legal notice on 28.1.2015. In reply to the said legal notice, the defendants

have denied the tenancy. The plaintiff filed the suit (Civil Suit No.60-A/2015) seeking declaration that he is tenant in the shop in question and the

defendants be restrained to evict him forcibly.

The aforesaid suit was filed on 3.2.2015. The learned trial Court dismissed the suit by recording the finding that the plaintiff is tenant in the suit shop

since 1984, but at present, he is not possession thereof and the defendants are not trying to evict him by force, but they are adopting the procedure

under the law by filing a civil suit. Para 13 of the said judgment is reproduced below :

“13-   okniz'u Øekad 1 o 2 ds fu""d""kksZ ls ;g izekf.kr gS fd] oknxzLr Lfkku oknh dks o""kZ 1984 ls fdjk;snkjh ds :i esa iznku fd;k x;k Fkk]

ijUrq orZeku esa og oknxzLr LFkku esa vkf/kiR;/kkjh ugh gSA izfroknhx.k ds }kjk oknh dks oknxzLr LFkku ls cyiwoZd csn[ky djus dk iz;kl ugh fd;k

tk jgk gS cfYd izfroknhx.k ds }kjk fof/kd izfØ;k viukdj fu""dklu ds lca a/k esa okn izLrqr fd;k x;k gSA ,slh fLFkfr esa oknh fdlh Hkh izdkj dh ?

kks""k.kk ,oa fu""ks/kkKk izkIr djus dk vf/kdkjh ugh gSA vr% mDr fu""d""kksZ ds vk/kkj ij oknh viuk okn izekf.kr djus vlQy jgk gSA Qyr% oknh dk okn

fujLr fd;k tkrk gSA â€​

Being aggrieved by the aforesaid judgement and decree, the plaintiff preferred appeal No.16-A/2017 before the first appellate Court. In the said

appeal, the plaintiff has filed an application under Order 23 Rule 1 of the C.P.C. seeking withdrawal of the plaint on the ground that the defendants

have filed the civil suit (Civil Suit No.65A/2016) for eviction against him and he has received the notice for appearance on 17.6.2016, therefore, in

view of this subsequent development, he may be permitted to withdraw the suit.

The aforesaid application was opposed by the respondents/defendants by submitting that the permission to withdraw the suit cannot be granted as

some important issues have been decided in the said suit in their favour and withdrawal of the suit is not bonafide.

The learned first appellate Court vide order dated 20.12.2017 has declined withdrawal of the suit by rejecting the application under Order 23 Rule 1

of the C.P.C., hence the present revision before this Court.

Shri M.K. Jain, learned counsel appearing for the applicant, submits that the plaintiff is free to withdraw his suit at any stage without asking any

relief to file a fresh suit and such a prayer ought not to have been refused by the first appellate Court. The applicant filed the suit seeking protection

against the illegal eviction and since the defendants have filed the suit, therefore, such a relief is not required and he can withdraw the suit at any stage

and no prejudice is going to be caused to the defendants. In support of his contention, he has placed reliance over the judgment of Hyderabad High

Court in the case of M. Subba Rao V/s. B. Vasanth : AIR 2015 Hyderabad 68; judgment of this Court in the case of Gordhanlal V/s. Babulal : 2018

(1) MPLJ 151; and judgment of Kerala High Court in the case of Ammini Kutty V/s. George Abraham : AIR 1987 Kerala 246.

Per contra, Ms. Kiran Juneja, learned counsel appearing for the respondents/defendants, submits that the application filed by the applicant is not

bona fide; certain findings have been recorded against him while deciding the suit and there are certain admissions in the cross-examination which are

coming in the way of the present applicant in the subsequent suit filed by the defendants, therefore, he is withdrawing the suit. The plaintiff may

withdraw the first appeal, but he cannot be permitted to withdraw the civil suit; he has not come with clean hands and the revision is liable to be

dismissed.

I have heard the learned counsel for the parties at length and perused the material available on record.

The present applicant filed the suit seeking declaration and permanent injunction on 3.2.2015. The defendants filed their written statement

specifically denying that they are trying to illegally evict the plaintiff; they simply made a request to the plaintiff to vacate the shop as the same is

required for their son and in turn, the plaintiff demanded Rs.1.00 Lakh. The learned trial Court recorded the finding that the plaintiff has not filed any

document that he is in possession of the shop in question and started living in Dewas. In the evidence, he has admitted that neither he is sitting in the

shop nor depositing the electricity rent and the electricity bill is being paid by the person who is in occupation of the shop. All these findings have been

invited by the plaintiff himself by pursuing the suit.

During pendency of the Civil Suit No.60-A/2015 filed by the present applicant, the defendants have filed the Civil Suit No.65A/2016 against him on

the ground of sub-tenancy and also on the ground that he is not in possession of the shop and left the same by handing over the possession to the sub-

tenant. In cross-examination of DW-1 â€" Raghuveersingh, the plaintiff himself asked the question about filing of the civil suit before Smt. Bilwar

Madam and he himself suggested the next date is 19.2.2016. Therefore, during pendency of his suit, the applicant was having knowledge of the suit

filed by the respondents/defendants for eviction. Hence, the applicant could have withdrawn the suit at that stage but, he continued with the suit and

invited all the findings against him and also dismissal of the suit. Now, on the same allegations, the defendants have filed the suit. The issues have

already been decided in respect of sub-tenancy as well as on the point that he is not in possession and that finding would operate as res judicata in the

subsequent suit, therefore, in order to avoid such a situation, the applicant is now trying to withdraw the suit. Thus, withdrawal of the suit by the

applicant is not bona fide because despite having knowledge of filing of the subsequent suit by the defendants, he persuaded his suit and obtained the

judgment and in the considered opinion of this Court, the learned first appellate Court has rightly dismissed the application filed by the applicant under

Order 23 Rule 1 of the C.P.C. No case for interference by this Court is made out.

Accordingly, this revision deserves to be and is hereby dismissed with costs of Rs.3,000/- (Three Thousand).

 Ordered accordingly.