1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL REVIEW APPLICATION NO. 24 OF 2007 IN FIRST APPEAL NO. 210 OF 2006 Mrs. Maria Theodora Francisca Ferrao E Reis .... Applicant V/s Mr. Moises Antonio R. Ferrao @ Cosme Moises Ferrao & 2 Ors. .... Respondents Ms. A. Agni, Advocate for the Applicant. Mr. S.D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 23rd SEPTEMBER, 2008. ORDER : The applicant/defendant no.3 seeks review of the order of this Court dated 4/10/2006, in First Appeal No. 210/2006. 2. Some facts are required to be stated to dispose of the application. The applicant was defendant no.3 and her brother, the respondent no.1 herein, was the plaintiff in Civil Suit No. 17/2004. The dispute between the said brother and sister was regarding house bearing no. 212 situated in the property surveyed under no. 353/6 in village Tivim of Bardez Taluka. The case of the plaintiff was that the said house was constructed by the plaintiff. The case of defendant no.3 was that the house was constructed by her husband and the suit property was gifted to her by gift deed dated 12/06/1972. The immediate 2 cause of filing the suit appears to have been a NOC given by defendant no.1/Village Panchayat and pursuant thereto, release of water connection by defendant no. 2/Executive Engineer, PWD, to the suit house. The learned trial Court dismissed the suit filed by the plaintiff i.e. respondent no.1 herein against which the said plaintiff had preferred an appeal and on 4/10/2006, the following order came to be passed; “Heard learned Counsel for the appellant, as well as the contesting and formal respondents. Learned Counsel for the appellant seeks to withdraw the Regular Civil Suit No. 17/2004. Allowed to be withdrawn. Accordingly, the appeal also stands disposed of as rendered infructuous, with liberty to the plaintiff-appellant to raise the question relating to the title to the suit house and validity of the Gift Deed dated 12.6.1972 in any other suit or any other proceedings. With this direction, the appeal as well as the suit stand disposed of with no order as to costs.” 3. The applicant has filed the present application for review, contending that the suit having been disposed of on merits, giving findings in favour of the applicant (defendant no.3), the suit could not have been allowed to be withdrawn with liberty to file appropriate proceedings, raising the question of title to the suit house and the validity of the Gift Deed dated 12/6/1972. It is contended that it was not the case of the plaintiff that there was any defect in the form of the suit to have allowed the plaintiff to withdraw the suit, in as much as, this Court had no jurisdiction to permit such a withdrawal in terms of Order 23, Rule 1, CPC and allowing such a withdrawal was an error patent on the face of the record and therefore the impugned order dated 4/10/2006 3 deserves to be set aside. 4. Notice having been given to the respondent no.1/plaintiff, he filed a reply stating that the said Civil Suit was filed by him because defendant no.3 released water connection to the suit house which was claimed by him as belonging to him and that his prayer in the said suit was to restrain the respondent no.3/Executive Engineer from giving water connection to the suit house at the instance of the applicant who was defendant no.3, in the said suit. The plaintiff also stated that during the pendency of the suit water connection was already released in favour of the applicant (defendant no.3) thereby rendering the suit substantially infructuous and it was his contention in the appeal that the finding of the trial Court as regards the title in relation to the Gift Deed was illegal. The plaintiff has also stated that on his behalf, his advocate had submitted that the findings on the title were not essential for determination of the question as to whether the applicant was entitled to water connection to the suit house which was being occupied by her and that his advocate had suggested that in view of the fact that water connection was already granted to the suit house during the pendency of the suit, his client i.e. the plaintiff was willing to withdraw the suit and consequently the appeal, if the questions relating to title were left open, whereupon the advocate appearing on behalf of the applicant sought time to seek instructions of his client i.e. the applicant, and the matter was adjourned and on the adjourned 4 date advocate for the applicant, upon instructions from his client, conveyed that the applicant was agreeable to this course and in this background the impugned order came to be passed. The plaintiff has further stated that applicant was present in the Court when the suggestion was made by his advocate and also on the day on which impugned order was passed and that the present application has been filed only by way of an afterthought for review, changing advocate and that too after the learned Judge who passed the impugned order was not available for hearing the review application. The plaintiff stated that the order does not suffer from any error apparent on the face of record. 5. The applicant has filed a rejoinder and has stated that the relief in the Civil Suit was also for a declaration that she had no right to the suit house and that she was not entitled to take water supply to the suit house and therefore it is incorrect that the prayer in the civil suit was only to restrain respondent no.3 from giving water connection. The applicant has denied that the suit was rendered infructuous due to release of water connection and if that was so the plaintiff would not have filed the first appeal before this Court and the trial Court had squarely decided the main issues cast on the plaintiff in the negative. The applicant has denied that her advocate had conveyed to her that she was agreeable for withdrawal of the suit leaving the question relating to title open and that her advocate never sought any instructions from 5 her as to whether she was agreeable for withdrawal of the suit and appeal leaving the question relating to title open and the question of giving such instructions therefore did not arise. 6. Ms. Agni, the learned Counsel appearing on behalf of the applicant has submitted that the plaintiff's suit was dismissed and the applicant was held to be the owner of the house. She submits that her client gave no instructions to her advocate at the time of withdrawal of the suit and the appeal, and even if consent was recorded, it could not have given jurisdiction to the Court to allow the withdrawal of the suit. Learned Counsel submits that the applicant would not have given her consent when the findings were in her favour. Learned Counsel further submits that no satisfaction was recorded by the Court as required by sub-rule 3 of Rule 1, Order 23, CPC in as much as, it was not the case of the plaintiff that there was any formal defect in the suit for which they had sought withdrawal. Learned Counsel further submits that the impugned order was passed by ignoring the judgment of the Apex Court in K.S. Bhoopathy & Ors. V/s. Kokila & Ors. (2000 AIR SCW 2194). Learned Counsel has placed reliance on Amarjit Kaur V/s. Harbhajan Singh & Anr. (2003 (10) SCC 228), The Nalagarh Dehati Co- operative Transport Society Ltd., Nalagarh V/s. Beli Ram etc. (AIR 1981 HP 1) and Martin & Harris Ltd. V/s. VIth Additional District Judge & Ors. (1998 (1) SCC 732). 6 7. On the other hand, Shri Lotlikar, the learned Senior Counsel, on behalf of the plaintiff, has submitted that the plaintiff will consider filing of a fresh suit only in case the plaintiff gets a new cause of action. Learned Counsel further submits that the judgments cited on behalf of the applicant have no relevance to the case at hand. Shri Lotlikar submits that the impugned order was passed with consent and a procedural provision like that of Order 23 could always be waived. Learned Senior Counsel further submits that the plaintiff gave up the challenge against the water connection and in turn the applicant agreed that the question of title would be kept open. He further submits that there is no whisper in the application as to how the order came to be passed and the present application has been made only after changing Counsel, and, in support that such course should not be encouraged, Shri Lotlikar has placed reliance on Tamil Nadu Electricity Board & Anr. V/s. N. Raju Reddiar & Anr. (1997 (9) SCC 736). 8. In K.S. Bhoopathy & Ors. V/s. Kokila & Ors. (supra), the Apex Court stated that the law as to withdrawal of suits could be generally stated in two parts: (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the Court; in that case he will be precluded from suing again on the same cause of action. Neither the plaintiff can abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed 7 with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3) be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11, CPC. The Court also referred to the case of Bakhtawar Singh V/s. Sada Kaur (1996 AIR SCW 3493) wherein it was held that: “In the present case all the Courts below including the High Court concurrently found that the plaintiffs/appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject-matter. The plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiffs/appellants in accordance with the provisions of Clause (3) of Order 23, Rule 1 of the Code.” 9. In The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh V/s. Beli Ram etc. (supra) the Full Bench has stated that the failure of the Court to take into consideration an existing decision of the Supreme Court taking different or contrary view on the points covered by the judgment would amount to a mistake apparent on the face of record. 10. In Tamil Nadu Electricity Board & Anr. V/s. N. Raju Reddiar & Anr. (supra), the Apex Court has stated that it is a sad spectacle that a new 8 practice unbecoming and not worthy of or conducive to the profession is cropping up. The Apex Court stated that it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of Counsel, without obtaining consent of the Advocate-on-Record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice. In fact, the Apex Court proceeded to dismiss the application with exemplary costs of Rs. 20,000/- as it was an abuse of the process of Court in derogation of healthy practice. That was a case where an application was filed for clarification of the order, dismissing review application. 11. In the case of Nanik Wadhumal Alimchandani V/s. Mrs. Savitri Prem Mirchandani (AIR 2005 Bom. 172), a Division Bench of this Court stated that Judges make observations and express their views during the course of a hearing. Till the judgment is delivered and pronounced, a Judge is entitled to change his mind. If the appellant was of the view that the observations of the learned Judge were not warranted on a proper 9 appreciation of the merits of the case, it was the duty of the appellant or his Advocate to convince the learned Judge to the contrary or to await the judgment and challenge the same in appeal. It is important to note that it is not even the appellants case that the learned Judge refused to hear his Counsel. It is not open to a litigant to consent to an order and thereafter allege that he was forced by the Court to do s o . This can almost never be a ground for challenging an order. To hold otherwise would lead to disastrous consequences. If such allegations are entertained, in every matter a party would be able to challenge consent orders on this ground. The Division Bench also noted that if a litigant is not in agreement with the views expressed by a Judge during the course of a hearing, it is for him or his Advocate to try and convince the Judge to the contrary and in the event of his being unable to do so, to carry the matter in appeal. He is not entitled to challenge the order passed with his consent on the ground that the Judge forced him to do so. The learned Division Bench answered the contention that the appellant would not have consented to the probate being set aside or revoked by observing that the said contention was not well founded as the appellant was the executor and the only beneficiary of the Will and the only person who could therefore be affected by the revocation of the Will was the appellant and nobody else. In such circumstances, it is open to the executor and the sole beneficiary to consent to the revocation of the probate (emphasis supplied). 10 12. In my view, the decisions cited on behalf of the applicant have no relevance to the case at hand, particularly, in the case of K.S. Bhoopathy & Ors. V/s. Kokila & Ors. (supra). That decision might have been relevant in case there was contest and not consent. It can be seen from the impugned order that it was passed by consent in the presence of the applicant and her Counsel. The application for review has been filed after changing the advocate and that too after the learned Judge who passed the impugned order is not available to hear the review application as rightly contended on behalf of the plaintiff. The applicant did not at all set out the circumstances under which the impugned order came to be made and what has now been stated by the applicant in her affidavit in rejoinder can only be considered as an afterthought. The applicant was very much present and represented as well by her advocate at the time the impugned order dated 4/10/2006 was passed and it is therefore obvious that the same was passed with the consent of the applicant, and without her objection. If there was any objection, no such order would have been passed and in case of objection, the same would have been dealt with. The contention that the applicant did not consent for such an order, therefore needs to be rejected. 13. There is no doubt that in terms of sub-rule 3 of Rule 1, Order 23, CPC, the Court can grant leave to the plaintiff to withdraw the suit where the Court 11 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 subject- matter of such suit or part of the claim. Likewise, Rule 3 also provides that; Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by the parties), or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject- matter of the suit). Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. 14. However, in my view, the provisions of Order 23, sub-rule 3 of Rule 1 could not have come in the way of the applicant at all, since the said provision is only a procedural in nature and the applicant was always free to waive any right which might have accrued to her under the said decree which was the subject matter of appeal or the said provision of Order 23, Rule 1, sub-rule 3. It is quite probable that since the water connection was already given to the suit house that the plaintiff sought the withdrawal of the suit 12 leaving the matter of title to the suit house and the validity of the Gift Deed open to be decided in a future suit or proceedings. A right can always be waived or relinguished by a party for whose benefit certain requirements or considerations had been provided by an statute. The applicant cannot now be allowed to change her advocate and contend that the said order was made without her consent. The facts stated by the plaintiff clearly show that it was made with her consent and not only in her presence but in presence of her advocate as well. If she has any grievance, she is always free to proceed as against him. 15. In the light of above, I find there is no merit in this application. Consequently, the same is hereby dismissed, with costs. N.A. BRITTO, J. NH/-