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Judgment
R. Mala, J.—This Review Application arises out of order dated 25.3.2008 made C.R.P. (NPD) No. 1140 of 2008 passed by this Court.
The Respondents 1 to 4 herein as the Plaintiffs filed a Suit in O.S. No. 66 of 1993 before the District Munsif of Tiruchengode, seeking for declaration of title and also for permanent injunction against the Review Petitioners. After contest, the Suit was dismissed by the District Munsif, Tiruchengode, against which, the Plaintiffs/Respondents 1 to 4 herein preferred an Appeal in A.S. No. 433 of 2002, before the District Judge, Namakkal. During the pendency of the Appeal, the Plaintiffs/Respondents 1 to 4 herein came forward with the Application in I.A. No. 258 of 2004 in A.S. No. 433 of 2002 under Order 23 Rule 1, seeking permission to withdraw the Appeal and consequent Suit with liberty to work out their remedy in the partition Suit. After contest, the Application was dismissed on 30th October 2007, against which, the Plaintiffs/Respondents 1 to 4 herein preferred a Revision Petition in C.R.P. (NPD) No. 1140 of 2008, which was allowed without Notice to the Defendants/review Petitioners herein. Hence, the review Petitioners have come forward with the review Application.
The learned Counsel appearing for the Review Petitioners submitted that one Periyasami filed a Suit in O.S. No. 502 of 1980 before the Sub-Court, Salem, seeking for partition and for separate possession of the property against the 1st review Petitioner, wherein, preliminary decree was passed on 12.10.1981. In pursuance of the preliminary decree, he filed an Application in I.A. No. 806 of 1986 in O.S. No. 194 of 1986 before the Sub-Court, Sankari, for passing of final decree, which was dismissed as not pressed on 5.12.1986. Thereafter, Periyasami sold his share in the property to the Revision Petitioners/Respondents 1 to 4 herein on 19.8.1992. Then, the Respondents 1 to 4 filed the Suit in O.S. No. 66 of 1993 before the District Munsif, Tiruchengode, for declaration of title and also for permanent injunction against the review Petitioners. After contest, the Suit was dismissed, against which, they preferred the Appeal in A.S. No. 433 of 2002. During the pendency of the Appeal, they filed the Application in I.A. No. 258 of 2004 under Order 23, Rule 1of C.P.C., which was also dismissed. Against the dismissal of I.A. No. 258 of 2004, the Respondents preferred a Revision Petition in C.R.P. (NPD) No. 1140 of 2008, which was partly allowed without the notice to the Respondents therein/review Petitioners herein.
The learned Counsel appearing for the Review Petitioners submitted that without notices, the Revision was allowed and it will cause prejudice to the rights of the Respondents in Revision Petition. She relied upon the decision of the Apex Court reported in Sneh Gupta v. Devi Sarup, 2009 (6) SCC 194, submitted that permission to withdraw the Suit after passing of decree, i.e. at Appellate stage could be given only with notice to those who derived benefit under the judgment and decree passed in the Suit. Hence, she prayed for setting aside the order or Revision and also for restoration of the order passed in I.A. No. 258 of 2004 in A.S. No. 433 of 2002 by the Additional District Judge, FIC, Namakkal, dated 30.10.2007. To substantiate the same, she further relied upon the following decisions :
(i) The decision of the Apex Court in the case of R. Rathinavel Chettiar v. V. Sivaraman, 1999 (2) CTC 593 (SC) : 1999 (4) SCC 89.
(ii) The decision of the Apex Court in the case of K.S. Bhoopathy v. Kokila, 2000 (3) CTC 558 (SC) : AIR 2000 SC 2132.
Resisting the same, the learned Counsel appearing for the Respondents submitted that it is true that the vendor, Priyasami filed a Suit in O.S. No. 502 of 1980 for partition against his father, Sengoda Gounder, wherein, he obtained preliminary decree of partition on 12.10.1981. He also filed the Application in I.A. No. 805 of 1986 for passing of final decree, which was dismissed as not pressed on 5.12.1986. After that only, the Respondents 1 to 4 purchased the property from Periyasami. In stead of filing the final decree proceedings, the Respondents 1 to 4 filed the Suit in O.S. No. 66 of 1993 and the same was dismissed by the Trial Court, against which they preferred the Appeal in A.S. No. 433 of 2002. After that only, they came forward with the Application in I.A. No. 258 of 2004 in A.S. No. 433 of 2002 under Order 23 Rule 1of C.P.C. seeking permission to withdraw the Appeal and consequent Suit with liberty to work out their remedy in the partition Suit pending between the Petitioners'' vendor and Respondents. The learned Counsel for the Respondents relied upon Section 146 of C.P.C. and submitted that since the Respondents 1 to 4 purchased the property from the owner of co-sharer, they stepped into the shoes of Periyasami, hence, they are entitled to file a final decree proceedings. Be further submitted that the Respondents herein filed a final decree Petition in O.S. No. 502 of 1980 and the same was transferred to the sub-court, Sankari and renumbered as O.S. No. 194 of 1986. Subsequently, it was transferred to the District Munsif, Tiruchengode and renumbered as O.S. No. 758 of 2004, wherein, final decree Petition was filed, which was taken on file as I.A. No. 753 of 2004, which was pending. So, the said factum has been considered by this Court while passing the order in the Civil Revision Petition. The learned Counsel also relied upon the decision of this Court Kolanjiammal v. Ponmudi (minor), 1988 (2) LW 263 and submitted that in the partition Suit, all the parties interested in the properties are necessary parties as otherwise, the rights between them cannot be worked out and there will not be finality in the matter of the partition of the properties. Even though the Revision Petitioners became the purchaser pendente lite, they are entitled to workout certain remedy at the time of passing of final decree. If partition is effected without their presence, certainly their interest would be seriously affected. Hence, he relied upon the appropriate portion in the said judgment and also prayed for dismissal of this Application. Be also took me through the order passed in the Revision Petition and submitted that the Revision Petition was allowed only in respect of permission given to withdraw the Appeal and not the Suit. Hence, he prayed for the dismissal of this review Application.
I have considered the rival submissions made on either side and perused the records. Admittedly, the Revision Petitioners'' vendor Periyasami filed the Suit in O.S. No. 502 of 1980 on the file of sub-court, Salem, against the 1st review Petitioner for partition and for separate possession, wherein, preliminary decree was passed on 12.10.1981, declaring � share in the suit property. In pursuance of preliminary decree, Periyasami also filed an Application for passing of final decree in I.A. No. 805 of 1986. The case was transferred to sub-court, Sankari, which was renumbered as O.S. No. 194 of 1986 and that I.A. No. 805 of 1986 was not pressed on 5.12.1986. But, the Revision Petitioners/Respondents 1 to 4 herein purchased the property from Periyasami only after dismissal of final decree Petition on 19.8.1992. The Respondents 1 to 4 herein filed the Suit in O.S. No. 66 of 1993 for declaration of title and for injunction. After contest, the Suit was dismissed, against which, they preferred an Appeal in A.S. No. 433 of 2002. It is also the admitted fact that during the pendency of the Appeal, the Respondents 1 to 4 filed an Application in I.A. No. 258 of 2004 in A.S. No. 433 of 2002, seeking permission to withdraw the Appeal and consequent Suit with liberty to work their remedy in the partition Suit pending between the Petitioners'' vendor and Respondents and pass such other suitable orders in this regard and render justice. The review Petitioners who are the Respondents in I.A. No. 258 of 2004 filed a detailed counter and after that, the Application was dismissed stating that if permission to withdraw the Appeal Suit is to be granted, it will cause prejudice to the Respondents, against which, the Civil Revision Petition was filed.
In the Civil Revision Petition, at the time of admission, without notice to the Respondents/review Petitioners, the following order has been passed :
"4. In fact, the Civil Revision Petition is allowed in part and the order passed in I.A. No. 258 of 2004 in A.S. No. 433 of 2002 is set aside and the Revision Petitioners/Appellants in A.S. No. 433 of 2002 are permitted to withdraw A.S. No. 433 of 2002. The Revision Petitioners are at liberty to seek their remedy in the connected partition Suit in O.S. No. 758 of 2004 on the file of the Court of District Munsif, Tiruchengode. The relief in respect of withdrawal of O.S. No. 66 of 1993 which had already been dismissed by the Trial Court is hereby rejected. No costs. Consequently, connected M.P. No. 1 of 2008 is closed."
On perusal of the order passed in the Revision Petition, it is seen that permission was granted only to withdraw the Appeal in A.S. No. 433 of 2002 and the Revision Petitioners are liberty to seek their remedy in the connected partition Suit in O.S. No. 502 of 1980, renumbered as O.S. No. 758 of 2004 on the Court of District Munsif, Tiruchengode. In the order, it was stated as follows :
"The relief with regard to withdrawal of O.S. No. 66 of 1993 which had already been dismissed by the Trial Court is hereby rejected, Which shows that this Court has not given permission to withdraw the Suit which was already been dismissed by the Trial Court on merits."
At this juncture, it is appropriate to consider the decisions relied upon by the learned Counsel for the Revision Petitioner. In the decision of the Apex Court in the case of R. Rathinavel Chettiar v. V. Sivaraman, 1999 (2) CTC 593 (SC) : 1999 (4) SCC 89, it was held as follows:
"3.� � � The dismissal of the Suit as not pressed at the Appellate stage, had the effect of destroying the decree passed in favour of Respondent 1 and since the property in question, which was the subject-matter of the Suit, had already been transferred in favour of the Appellants, the Suit could not have been dismissed as not pressed at the instance of Respondent 1 who had ceased to be the owner of the property and in whose place the present Appellants had become the owners and were, in that capacity, impleaded as Respondents in the Appeal.
In another Allahabad decision in Jutha Ram v. Purni Devi, ILR 1970 (1) All 472, the Plaintiff compromised the Suit with certain Defendants at the Appellate stage and gave an Application to withdraw the Suit against those Defendant-Respondents. The Court refused permission to withdraw the Suit as the withdrawal would have the effect of depriving the other Respondents of the benefit of the Lower Courts'' adjudication in their favour. This decision incidentally, applies squarely to the facts of the present case as in this case also the Plaintiff compromised with on of the Respondents and gave an Application for withdrawal of the Suit. Obviously, the intention was to deprive the Appellants of the benefit which had accrued to them on account of declaratory decree having been passed in favour of the Plaintiff who incidentally was their predecessor-in-interest.
In view of the above discussion, it comes out that where a decree passed by he Trial Court is challenged in Appeal, it would not be open to the Plaintiff, at that stage, to withdraw the Suit so as to destroy that decree. The rights which have come to be vested in the parties to the Suit under the decree cannot be taken away by withdrawal of the Suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody''s vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained."
In the decision of the Apex Court in the case of K.S. Bhoopathy v. Kokila and others, 2000 (3) CTC 558 (SC) : AIR 2000 SC 2132, it was held that the Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. It is appropriate to incorporate Paras 12, 15 & 16 and the same are extracted here under:
"12. The provision in Order 23, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore on Principle of Application by a Plaintiff under sub-rule (3) cannot be treated on par with an Application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, (1) where the Court is satisfied that a Suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (d) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the Plaintiff to institute a Fresh Suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the Application under Order 23, Rule 1 is filed by the Plaintiff at the stage of Appeal. Grant of leave in such a case would result in the unsuccessful Plaintiff to avoid the decree or decree against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting Defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a Suit with leave to file a Fresh Suit may also result in anmilment of a right vested in the Defendant or even a third party. The Appellate/Second Appellate Court should apply its mind to the case with a view to ensure strict Compliance with the conditions prescribed in Order 23, Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the Suit with leave to file a Fresh Suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a Suit at the Appellate/Second Appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in Lower Courts and inordinate delay in disposal of the cases.
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The question for consideration in the present case is whether the High Court has exercised the discretion vested under Order 23, Rule 1(3), C.P.C. on consideration of matter relevant for exercise of such power. On perusal of the impugned order it is clear to us that the learned Judge has not considered the matter in its proper perspective while allowing the prayer of the Plaintiff for permission to withdraw the Suit with leave to file a Fresh Suit. The order is vitiated on account of Non-Application of mind to the relevant aspects of the matter. This Petition is clear from some observations in the impugned order which are extracted herein below :
"But one fact situation has to be remembered in this case, viz., that it was the Appellants who succeeded in the Trial Court in obtaining a decree and in the Appeal against such decree by the Respondents, which was partly allowed, the Appellate Court found that the pathway was common to both the parties, but the right was not gone into, title was not determined, in such a situation withdrawal of the Suit at the Appellate stage although it may amount to withdrawal or nullification of the Appellate Court''s order, still not hurt any party other than the withdrawing Plaintiffs, because they are also having the right to use the common pathway and the decree preventing installation of the machinery is nullified. Therefore, the contention that withdrawal will prejudice the Respondents has no basis. The apprehended prejudice can be safeguarded by keeping the right to use the pathway by both the parties till the disposal of the Suit.
� � � In view of this settled position, it is appropriate to permit withdrawal of the Suit with a liberty to file a Fresh Suit for declaration of title which they ought to have done at the initial stage. By withdrawal, the Respondents should not be deprived of the benefit of usage of that passage till the final adjudication. If there are valid defences, they can raise all such defences."
From the above it appears that the approach of the High Court was that the Plaintiff should have prayed for declaration of title which they had omitted to include in the Plaint. It was for the Plaintiffs to frame their Suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the Suit accordingly. On the other hand the Plaintiffs merely sought a decree of injunction permanently restraining the Defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the Trial Court and the First Appellate Court it is clear that the Plaintiffs realized the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the First Appellate Court they took recourse to Order 23, Rule 1(3), C.P.C. and filed the Application for withdrawal of the Suit with leave to file Fresh Suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of the Defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the Fresh Suit to be filed, permission for withdrawal of the Suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the Suit with leave to file Fresh Suit by the Plaintiffs and in such a matter the statutory mandate is not complied by merely stating the grant of permission will not prejudice the Defendants. In case such permission is granted at Appellate or Second Appellate stage prejudice to Defendant is Writ large as he loses the benefit of the decision in his favour in the Lower Court."
In the decision of the Apex Court in the case of Sneh Gupta v. Devi Sarup, 2009 (6) SCC 194, it was held that in terms of Order 23, Rule 1, C.P.C., it was the privilege of the Plaintiff alone to withdraw the Suit at any stage of proceedings and the Appellant being only one of the Defendants did not have any locus standi to object thereto. During the pendency of the Appeal filed against the decree passed in Suit No. 185 of 1989, a compromise was entered into between the Plaintiff and 3rd Respondent herein, in terms whereof the said Appeal was allowed and the Suit filed by the daughter of M i.e. V was dismissed as withdrawn. The Appellant and/or other heirs and legal representatives of M were not parties to the said compromise. If an order is void or voidable, the same must be set aside within the period of limitation. The above citation is not applicable to the facts of the present case.
In the decision of Apex Court R. Rathinavel Chettiar and others v. V. Sivaraman, 1999 (2) CTC 593 (SC) : 1999 (4) SCC 89, it was held that since withdrawal of Suit at the Appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course. Therefore, where a decree by the Trial Court is challenged in Appeal, it would not be open to the Plaintiff, at that stage, to withdraw the Suit so as to destroy that decree. But here, in the Civil Revision Proceedings, no permission has been given to the Revision Petitioners to withdraw the Suit that has been dismissed by the Trial Court. But, permission is given to the Revision Petitioners only to withdraw the Appeal in A.S. No. 433 of 2002. In such circumstances, I am of the view that the arguments advanced by the learned Counsel for the Review Petitioners does not find merit acceptance.
It is appropriate to incorporate Section 146 of C.P.C. and the same is extracted here under :
"146. Proceedings by or against representatives.�Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or Application made by or against any person, then the proceeding may be taken or the Application may be made by or against any person claiming under him."
Section 146 says the transfer of interest in the subject matter of Suit was made by the party during the pendency of the Suit. The transferee transferred the same interest to another. Whether the second transferee can be brought on record in absence of first transferee. The transferee, pending litigation of the suit property, is entitled to execute the decree obtained by the Plaintiff.
Considering the same, this Court has given liberty to the review Petitioners to seek remedy in the connected partition Suit in O.S. No. 502 of 1980, which was renumbered as O.S. No. 758 of 2004 on the file of District Munsif Court. It is appropriate to consider the decision of this Court in the case of Kolanjiammal v. Ponmudi (Minor), 1988 (2) LW 263, wherein, it was held that pending a Suit for partition the Defendants sold one of the items in dispute. A preliminary decree was passed and during the pendency of the Appeal against that decree the purchaser applied for impleading herself as an Appellant. The lower Court dismissed the said Petition and this CMA was against the order. It was further held that in a partition Suit, all the parties interested in the properties are necessary parties as otherwise, the rights between them cannot be worked out and there will not be finality in the matter of the partition of the properties. Even though the Appellant became a purchaser pendente lite, she is entitled to work out certain equities at the time of passing of the final decree. If partition is affected without her presence, certainly her interest would be seriously affected. Being a purchaser she stepped into the shoes of her vendor, in so far as her right in the suit properties are concerned, and therefore, she is entitled to protect her interest in the absence of her vendor. Simply because the Appellant purchased the property during the pendency of the Suit, it cannot be stated that she is not entitled to be added as a party to the Appeal. She is entitled to come on record being a person entitled to an interest in one of the items of the suit properties. In so far as the preset proceedings are concerned, the Suit being one for partition, the Suit is deemed to be pending till the final decree is passed.
So, I am of the view that the Revision Petitioners are the purchaser of the property, during the pendency of the Suit in O.S. No. 502 of 1980 which was renumbered as O.S. No. 758 of 2004 on the file of the Court of District Munsif, Tiruchengode. The Respondents 1 to 4 herein stepped into the shoes of the one of the sharer/vendor, who is the Plaintiff in the partition Suit. So, the Respondents have every right to work out to their remedy in the partition Suit. Hence, the order passed by this Court in the Revision does not suffer any error apparent on the face of the record. Hence, this Review Application is liable to be dismissed as devoid of merits.
In fine,�
(a) This Review Application is dismissed.
(b) The order dated 25.3.2008 in C.R.P. (NPD) No. 1140 of 2008 passed by this Court is hereby confirmed.
(c) There is no order as to costs.
(d) Consequently, connected Miscellaneous Petition is closed.