IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 132 of 2006. Reserved On 8.8.2011 Date of Decision: 11.8.2011. Smt. Arun Prabha & Others …Petitioners. Versus. Rajesh Kumar & Others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. For the Petitioners: Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. For the Respondents: Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. Deepak Gupta, J. 1. By means of this petition, the petitioners (hereinafter referred to as the defendants) have challenged the order dated 27.9.2005 passed by the learned District Judge, Solan whereby in the appeal filed by the plaintiffs, he allowed their application and permitted them to withdraw the suit, which already stood dismissed, with liberty reserved to them to file a fresh suit in respect of the same property and on the same cause of action. 2 2. To appreciate the rival contentions of the parties, it would be appropriate to refer the pedigree table as set out by the plaintiffs (respondents herein). ___________________Gairu (died)_____________ l l Shiv Dutt Narainu (died) (died) _____________ l_______________ ____________l_______________ l l l l Lachhmi Sumitra Shakuntla Dharam Singh Sant Lal (widow) l _________l_______ ______________ l______________ Rajneesh Kr. Pawan Kr. l l Anuprabha Mohinder Sarda Kumari Devi. 3. The plaintiffs Dharam Singh and Sant Lal are the sons of Narainu. The original defendant Sumitra Devi was the daughter of late Shri Shiv Dutt and the other defendants namely, Mohinder Kumari, Arunprabha and Sarda Devi were the grand-daughters of late Shiv Dutt. Their mother Shakuntla had already expired. Lachhmi Devi widow of late Shri Shiv Dutt had also expired. According to the plaintiffs, late Shiv Dutt had executed a release deed/relinquishment deed qua the suit property in their favour and thereafter the plaintiffs continued to be in possession of the entire suit land. The plaintiffs also challenged the Will executed by late Shiv Dutt vide which he had bequeathed his property in favour of his widow Smt. Lachhmi Devi and daughters Sumitra and Shakuntla. The plaintiffs basically questioned the authority of Shiv Dutt to execute the Will on the ground that he had relinquished the suit property in their favour and, therefore, he could not have bequeathed it in favour of his heirs. 3 4. As far as the defendants are concerned, according to them they are owners in possession to the extent of half share of the suit land. They further alleged that the land which was mortgaged, exclusively belonged to Shiv Dutt and was purchased by him and they are coming in exclusive possession of the suit land. They denied that Shiv Dutt had never executed any relinquishment deed and, therefore, he was well within his rights to execute a Will qua this property. The parties went to trial. A number of issues were framed and finally the learned trial Court came to the conclusion that no family partition or arrangement had taken place between Shiv Dutt and Narainu, nor Shiv Dutt had relinquished his land in favour of Narainu. I am purposely not going into the details of the case, because I want to restrain myself from making any observations, regarding the merits of the case. The learned trial Court held that Lachhmi Devi succeeded to the estate of her late husband Shiv Dutt and after her death, the same had devolved upon her daughter Sumitra and grand daughters since their mother Shakuntla Devi had already expired. 5. The plaintiffs aggrieved by this judgment filed an appeal in the court of learned District Judge, Solan. During the course of this appeal, Sheela Devi expired. After her death, the plaintiff Sant Lal moved an application that the name of Smt. Sumitra Devi may be deleted from the array of defendants and he 4 (Sant Lal) be treated as her legal representative. The other defendants contested this application, on the ground that Sumitra Devi had executed a valid Will in favour of her nieces Arunprabha and Sarda Devi. The learned District Judge, Solan came to the conclusion that the Will had not been proved and Sant Lal was the sole legal heirs of Smt. Sumitra Devi. This order was challenged by Arunprabha and Sarda Devi by filing CMPMO No.134 of 2003 in this Court. This Court set aside the order of the learned District Judge, Solan and held that the conflicting claims of the parties with respect to the estate of deceased Sumitra Devi could not be decided in proceedings under Order 22 Rule 4 CPC and the parties could, if they so desired, file appropriate proceedings independently of the aforesaid appeal for agitating and establishing their legal rights to the estate of deceased Sumitra Devi. The petition was allowed and the case was remanded to the learned District Judge, Solan. 6. Thereafter the defendants filed an application under Order 6 Rule 17 CPC seeking permission to amend the plaint on the ground that such relief should be granted by way of amendment. Then, they withdrew this application and filed an application under Order 23 Rule 1 (3) of CPC seeking permission to withdraw the suit itself, with liberty to file a fresh one on the 5 same cause of action. This application was allowed. Hence, the present petition. 7. First of all, I may refer to Order XXIII (1) (3) of CPC which reads as follows:- ”(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 subject-matter of such suit or such part of the claim.” 8. Sub Rule 3 of Rule (1) applies only where the suit must fail by reason or some formal defect, or there are other sufficient grounds to permit the plaintiff to institute a fresh suit in respect of the subject matter. Once the plaintiff has suffered a decree dismissing his suit his prayer to withdraw the suit with liberty to file a fresh one cannot be easily accepted. 9. In R.Rathinavel Chettiar and another Vs. V. Sivaraman and others, (1999) 4 Supreme Court cases 89, the question which arose before the apex Court is stated in para 8 of the judgment which reads as follows:- ” x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 8. The question in the present case is, however, a little different. If the suit has already been decreed or, for that matter, dismissed and a decree has been passed determining the rights of the parties to the suit, which is under challenge in an appeal, can the decree be destroyed by making an application for dismissing the suit as not pressed or unconditionally withdrawing the suit at the appellate stage? It is this question which is to be decided in this appeal. x x ” Thereafter the apex Court referred to a large number of cases and held as follows:- 6 ” x x x x x x x xx x x x x x x x x x x x x x x x x x x x x x x x x x x x x 22. In view of the above discussion, it comes out that where a decree passed 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. 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. x x x x x x” 10. It is thus apparent that once the plaintiff has suffered a decree whereby his suit has been dismissed, he must make out a very strong case before permission can be granted to him to withdraw the suit. The apex Court has clearly held that rights have vested in the defendant which cannot be wished away by allowing the plaintiff to withdraw the suit. 11. Reference may also be made to the judgment of a learned Single Judge of this Court in Man Sukh Vs. Jagdish Chand, 2003 (2) Shim. L.C. 24 wherein this Court held as follows:- ” x x x x x x x x x x x x x x x x x x x x xx x x x x x x x x x x x x x x x 11. Referring to Daulat Ram v. Smt. Janki Devi and others, 1995 () Sim. L.C. 132, Mr. Goel contends that it is not necessary that there should be a formal defect in the suit for its withdrawal. The plaintiff can be permitted to withdraw the suit with permission to bring another suit on the same subject matter if there are sufficient grounds which need not be ‘ejusdem generis’ to the formal defect. In other words those grounds need not be analogous to formal defect. There can be no dispute with the argument raised by Mr.Goel. The question nevertheless arises whether in the present case those grounds exist or are made out by the plaintiff which are sufficient to permit the plaintiff to withdraw the suit and institute a fresh suit for the same subject matter. 12. Plaintiff, in my view, cannot be permitted to take shelter behind this provision, after prolonged litigation, on the realization of the weakness of his case on merits. I find substance in the contention of Mr. Bhardwaj that finding serious lacunae in his case, the plaintiff resorted to this provision to prolong the agony of the defendant. As pointed out in Chander and others v. Gulzari Lal and others, 1979 the Punjab Law Reporter, 637, the mere inability of the plaintiff to produce the relevant record or to adduce the adequate evidence to substantiate its claim cannot be a good or sufficient reason for instituting a fresh suit, on the same subject matter. Even a lapse on the part of the plaintiff to fully describe the suit land, in itself does not warrant the grant of permission to file a fresh suit. Learned District Judge in his impugned judgment has failed to pinpoint either a formal defect or sufficient grounds on 7 which liberty could be granted to the plaintiff to institute a fresh suit. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x” 12. On the other hand, Mr. G.D. Verma, learned Sr. Advocate has raised preliminary objection that the petition is highly belated and that an order permitting the suit under Section 151 of CPC is revisable under Section 115 of CPC and therefore, the petition is not maintainable. 13. As far as the objection on the ground of limitation or delay and laches is concerned, I find no merit in the same. The suit was permitted to be withdrawn on 27.9.2005. The petitioners- defendants were not aware, whether the plaintiffs would file or not file a new suit. They were served in the second suit and thereafter they filed the present petition in May, 2006. It cannot be said that the same is belated. 14. As far as the objection that alternative remedy under Section 115 CPC is available is concerned, in my view that is not applicable in the present case, since the proviso to Section 115 CPC introduced w.e.f. 1.7.2002 bars the High Court from varying or reversing any order of the trial Court except where the order if it had been made in favour of the party praying for revision would have finally disposed of the suit or other proceedings. In my opinion, the dismissal of the application under order XXIII Rule 3 would not have ended the suit or the appeal and, therefore, a revision may not have been maintainable and this Court can 8 exercise its power of superintendence under Article 227 of the Constitution of India. 15. Reliance placed by Mr. G. D. Verma, learned Senior Advocate on the judgment of the Himachal Pradesh Judicial Commissioner’s Court in case titled as Bhandari v. Shiamu and another, AIR 1956 H.P. 16 and in Smt. Shakuntala Devi and others v. Surinder Kumar and others, AIR 1991 Himachal Pradesh 13 are totally misplaced, since those cases related to a period much prior to the introduction of the proviso. 16. No doubt, in exercise of supervisory jurisdiction of this Court, the High Court normally is not expected to correct all errors of the learned trial Court. The powers of superintendence are to be exercised, where either a wrong principle of law is applied or there is an error of jurisdiction. In the present case, there is a clear-cut error of jurisdiction, since the order of the learned District Judge, Solan is totally contrary to the order of this Court in CMPMO No 134 of 2003, whereby it was made clear that the dispute regarding the estate of Sumitra Devi could only be the subject matter of separate proceedings. 17. Even otherwise, I am constrained to observe that I do not understand how Sant Lal can claim to be the heir of Sumitra Devi. Under Section 15, if a Hindu female dies intestate, then her property will devolve firstly upon her sons and daughters, including the children of any pre deceased son or daughter and 9 the husband. Admittedly, Sumitra Devi was unmarried and this clause will not apply. Her mother and father had died before her. Therefore, her case would fall under Clause (d) of Sub Section (1) of Section 15 of the Hindu Succession Act, 1956 in which case her estate was to devolve upon the heirs of the father. The defendants were the heirs of Shiv Dutt. Sant Lal could not be said to be the heir of Shiv Dutt. Sant Lal and Dharam Singh can only succeed, if they show that Shiv Dutt had relinquished his share in the property. Therefore, for decision of the appeal, it was not necessary to decide, whether Sumitra Devi had executed a valid Will in favour of Arunprabha or Sarda Devi or not. Even otherwise, all the parties who claimed to be the heirs of Sumitra Devi were arrayed as parties in the appeal. Therefore, the appeal should have been decided and thereafter the parties could establish their rights to the estate of Sumitra Devi independently of the result of the appeal. 18. Therefore, I am of the considered view that the learned District Judge, Solan gravely erred in permitting the suit to be withdrawn with liberty to file a fresh suit. The order is accordingly set aside and the case is remanded to the Court of the learned District Judge, Solan for decision on merits. The parties through their learned counsel are directed to appear before the learned District Judge, Solan on 19th September, 2011 who shall 10 now hear and decide the appeal on merits. As a consequence of the setting aside the impugned order, any action which may have taken by the learned trial Court is non-est. 19. The petition is allowed in the aforesaid terms. No costs. (Deepak Gupta), Judge August , 2011. (Krn Guleria)