R. RA THINA VEL CHETTIAR AND ANOTHER A

V. SIVARAMAN AND OTHERS

MARCH 31, 1999

[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] B

Code of Civil Procedure 1908, Order XXlll Rule 1, I-A-Suit by plaintiff for declaration of title to property and possession decreed-Plaintiff selling property to appellants soon thereafter-During pendency of appeal by defendant, plaintiff_ applying for dismissal of suit as not pressed stating he C had compromised the dispute with defendant-High Court allowing application-Held, Plaintiff cannot be allowed to withdraw decreed suit at the stage of appeal so as to take away rights vested in parties.

VS, plaintiff-respondent No. 1, filed a suit against S, widow of his brother, inter alia, for declaration of title to and possession of the suit D property. The suit was decreed by the trial court. S filed an appeal in the High Court. The appellants, who purchased the suit property from VS three days after the suit was decreed, got themselves impleaded in the appeal as respondents.

VS filed an application in the High Court for dismissing the suit as E not pressed as he had compromised the dispute with S. This application was allowed by the High Court. Aggrieved, the appellants approached this court.

Allowing the appeal, this Court

HELD : i. t. 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 F so as to destroy that decree. The rights which have come to be vested in parties to the suit under the decree cannot be taken away by withdrawal of suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudke anybody's vested rights. The judgment of the High Court in which a contrary view has been expressed cannot be sustained. G

[321-A-B)

1.2. Having purchased the property from the plaintiff after a declaration was given in his favour, a valuable right came to be vested in the appellants which could not be taken away by the plaintiff by withdrawal of the suit unconditionally as the withdrawal was positively to have the effect of destroying H 313

A the decree already passed in favour of the plaintiff. (321-F-G]

1.3. The appellants having already been impleaded as respondents in the appeal, had a right to be heard in the matter of withdrawal of suit. The appeal would now be remanded and decided on merits by the High Court.

(322-A-B]

_.:~ . i

Hulas Rai Baij Nath v. K.P. Bass & Co., [1967) 3 SCR 886; Tukaram Mahadu Tande! v. Ramchandra Mahadu Tande/, AIR (1925) Born 425; Dharma Raja v. K.M Pethur Raja, AIR (1924) Mad 79; Kedar Nath v. Chandra Kiran AIR (1962) All 263; Vidhyadhar Dube v. Har Charan, AIR (1971) All 41; Kanhaiya v. Mst. Dhaneshwari, AIR (1973) All 212; Thakur Balaram Singh C v. K. Achuta Rao, (1977) 2 A.P.L.J. 111; Ram Dhan v. Jagat Prasad Sethi, AIR

(1982) Raj 235; Sh. Guru Maharaj Anahdpur Ashram Trust Guna v. Chander Prakash, (1986) 1 89 Punjab Law Reporter 319 and Jutha Ram v. Purni Devi /LR, (1970) 1 Allahabad 472, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1821-22 D of 1999.

From the Judgment and Order dated 28.10.87 of the Madras High Court in A. No. 149/84 and C.M.P. No. 15941of1987.

K. Parasaran, V. Balaji and A.T.M. Sampath for the Appellants.

S. Balakrishnan, Vipin, P.B. Suresh and Subramanium Prasad for the Respondents.

The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. V. Sivaraman (plaintiff-respondent No.1) filed F a suit against Shakunthala, widow of his brother, for declaration of title to the suit property and for a direction to the defendants, namely, Shakunthala and Vinayagam, to put him in possession of that property and to pay the arrears of rent amounting to Rs. 18,000 together with further mesne profits. The suit was decreed by the trial court on 5th September, 1983 against which Shakunthala G filed an appeal in the High Court and during the pendency of the appeal in that Court, the present appellants were impleaded as respondents by order dated 20.3.1985 passed in C.M.P. No. 5008 of 1984. It was indicated in that application that three days after the decree was passed by the trial court, plaintiff (respondent No. l) sold the suit properties to the appellants and since the properties in suit had been assigned to them, they had to be impleaded H a:; respondents as required by Order 22 Rule 10 C.P.C.

R.R.CHETTIARv.V. SIVARAMAN[S.SAGHIRAHMAD, J.] 315

Respondent No.I, it appears, filed an application (C.M.P. No. I 5941 of A,

1987) in the High Court for dismissing the suit as not pressed as he had compromised the dispute with Shakunthala and wanted the compromise to be recorded. This application was allowed by the High Court by its judgment dated October 28, 1987 and it is against this judgment that the present appeals have been filed.

Mr. K. Parasaran, learned Senior Counsel appearing for the appellants, has contended that the suit which was decreed by the trial court should not have been dismissed as not pressed at the instance of respondent No. I as

he had already transferred the suit properties in favour of the appellants who, being tranferees-pendente-Iite were vitally interested in the decree remaining C intact. It was further contended that respondent No. I had been held to be the owner of the property in suit by the trial court and it was after a declaration was granted in his favour that the property was purchased by the appellants.

The dismissal of the suit as not pressed at the appellate stage, had the effect of destroying the decree passed in favour of respondent No. I and since the property in question, which was the subject matter of the suit, had already D been transferred in favour of the appellants, the suit could not have been dismissed as not pressed at the instance of respondent No. I 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.

Learned counsel for respondent Nos. I and 2, on the contrary, contended that the plaintiff (respondent No. I) had an unfettered right to have his suit . dismissed as not pressed. He, it is contended, cannot be forced by any of

the parties to the suit, to continue to prosecute the suit. It is also contended that under Order 23 Rule I of the Code of Civil Procedure, respondent No. F 1 had the right to compromise the suit with Shakunthala (respondent No. 2) against whom he had filed the suit and since the dispute between respondent Nos. I and 2 had been amicably settled by a compromise, it was open to respondent No. I to apply to the Court to dismiss the suit as not pressed.

The relevant portion of Order 23 Rule I. provides as under:- G

"l. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

A (2) ................................. .

(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.

(4) .................................. .

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

Order 23 Rule I, quoted above, provides that a plaintiff can withdraw a suit or abandon a part of his claim unconditionally. It creates a right in favour of the plaintiff to withdraw the suit, at any time, after its institution.

E Once the suit is withdrawn or any part of the suit is abandoned against all or any of the defendants, unconditionally, the plaintiff cannot bring a fresh suit on the same cause of action unless leave of the Court is obtained as provided by Order 23 Rule 1(3)(b).

In other words, a plaintiff cannot while unconditionally abandoning a F suit or abandoning a part of his claim, reserve to himself the right to bring a fresh suit on the same cause of action. (See: Hulas Rai Baij Nath v. K.P.

Bass & Co., AIR 1968 SC 111 = (1967) 3 SCR 886.

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 G 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.

Every suit, if it is not withdrawn or abandoned, ultimately results in a H decree as defined in Section 2(2) of the Code of Civil Procedure. This definition,

R.R. CHETTIAR v. V. SIVARAMAN [S. SAGHIR AHMAD, J.] 317

so far as it is relevant, is reproduced below:- A

"2(2). "decree" means the formal expre.ssion of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination B of any question within Section 144, but shall not include;

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.- A decree is preliminary when further proceedings have to be -taken before the suit can be completely disposed of. It is final

when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

Thus a "decree" has to have the following essential elements, namely,

(i) There: must have been an adjudication in a suit.

(ii) The adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy.

(iii) Such

1 determination must be a conclusive determination resulting E in a formal expression of the adjudication.

Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant.

What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystallised and unless the decree

is reversed, recalled, modified or set aside, the parties cannot be divested of G their rights under the decree. Now, the decree can be recalled, reversed o~ set aside either by the Court which had passed it as in review, or by the Appellate or Revisional Court. 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 but has to be allowed rarely only when a strong H

A case is made out. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full. trial on merits.

There is a .consensus of judicial opinion amongst the High Courts on the question before us. We may begin by referring to an old decision of the Bombay.High Court in Tukaam Mahaau TarJdel v. Ramchandra Mahadu B Tande/ & Ors., AIR (l 925) Bombay 425 in which tlie Division Bench of that Court observed that though as a general proposition, a plaintiff can, at any time, withdraw a suit but where the parties have entered into a compromise and the defendant has acquired a right under the compromise, it would not be open to the plaintiff who had consented to the compromise, afterwards to C annul its effect by withdrawing the suit under Order 23 Rule I read with Rule 3 thereof.

From Bombay, we may travel to Madras and refer to the decision of that High Court in Dharma Raja v. K.M Pethur Raja and others, AIR (1924) Madras 79. In this case, the plaintiff had obtained a decree against the D defendants against which only one of the defendants had filed an appeal while the rest of them did not challenge that decree. At the appellate stage, the plaintiff-respondent wanted to withdraw the suit against the appealing defendant so that the decree which had already been passed against other defendants who had not appealed, may be enjoyed by him. The High Court E while rejecting the application of the plaintiff for withdrawal under Order 23 Rule I C.P.C. observed as under :-

"The provision of law relied on by the plaintiffs-respondents in 0 23, R. l of the Code of Civil Procedure, which provides for th_e withdrawal of a suit by a plaintiff and abandonment of part of his daim. Thus the rule gives as a matter of right and it is not disf)uted that a similar privilege is inherent in an appellant as regards his appeal: but we have

/ not been referred to any ruling or provision of law which would extend this privilege to a plaintiff-respondent, nor can we see any reason why,· when the litigation has reached the' stage of an appeal, the respondent should be allowed the right to defeat the app!!al and prevent its being heard by the simple process of withdrawing his suit as against the appellant. It may of course be argued that, although this is not a right of the appellant, nevertheless it is in the discretion of the Cort to allow him to do so but that will depen(l on , considerations which, we think, have not been appreciated by the H lower appellate Court."

I -...

'~ -

R.R. CHETTIAR v. V. SIVARAMAN [S. SAGHIR AHMAb, J.] 319

In Kedar Nath.and others v. Chandra Kiron and others, AIR (1962) A Allahabad 263, permission to withdraw the suit at the stage of second appeal was refused. The Court observed that where the case is at the stage of

seond appeal and the trial court has given a finding of fact which is binding in second appeal, the Court should not deprive the party of the plea of res judicata by allowing the plaintiff to withdraw the suit at that stage.

This decision was considered by the Division Bench of the same High Court in Vidhyadhar Dube and others v. Har Charan and others, AIR (1971) Allahabad 41 and was approved. It was held that the right of the plaintiff to withdraw the suit at the appellate stage is not an absolute right but is subject

'to rights acquired by defendant under the decree. It was, also observed that C withdrawal may be permitted if no vested or substantive right of any party to the litigation is adversely affected. The decision of this Court in Hulas Rai Baij Nath v. K.P. Bass & Co., AIR (1968) SC 111, was also considered and distinguished by observing as under :-

"In that case the Court had to consider the right of a plaintiff to D withdraw the suit before a decree came into existence and not after the decree had come into being. It was observed: "It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of the suit of a plaintiff after some vested right may have accrued in the suit in favour of the defendant. On the facts of this case, it is cear that the right of the plaintiff to withdraw the suit was E not at all 'affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial court was perfectly justified." In the present case, however, a right has become vested in the defendant after the decree in the suit had been passed."

Kedar Nath 's case (supr~) was fllowed in Kanhaiya and others v. Mst. F Dhaneshwari and another, AIR (1913) Allahabad 212, in which it was again laid down that the plaintiff does not have an unqualified or unfettered right under Order 23 Rule l(l) C.P.C. to withdraw the suit at the appellate stage when rights have accrued to the respondents under the 4ecree.

Both these decisions, namely, the decision of the A1lahabad High Court G in Kedar Nath 's case anti Kanhaiya 's case were fdJlowed by the Andhra Pradesh High Court in Thakur Ba/aram Singh v. K. Achuta Rao and others, {l 977) 2 A.P.L.J. 111, and it was held that though the plaintiff has an absolute right to withdraw his suit before the passing of a decree under Order 23 Rule

I (l) C.P.C. but permission to withdraw the suit at the appellate stage would H

A be refused if it would have the effect of prejudicing or depriving any right which became vested in the respondents or had accrued to them by reason of the findings recorded by the trial court.

The Allahabad decisions, referred to above, were followed by th~ Rajasthan High Court in Ram Dhan v. Jagat Prasad Sethi and other;,', AIR B (1982) Rajasthan 235, and Kasliwal, J. (as he then was) held that if the withdrawal of the suit at the appellate stage would have the effect of destroying the rights which had come to be vested in the defendant-respondents, the suit would not be permitted to be withdrawn. It was also held that though the plaintiff has an unqualified right to withdraw the suit under Order 23 Rule C l (l) C.P.C., he cannot be allowed to do so at the appellate stage. It was observed that though it is right that the plaintiff would be precluded from bringing a fresh suit on the same subject matter, it could not be denied that the defendant would not be entitled to use the findings given in such a suit as res judicata in subsequent proceedings.

D The same view was also expressed by the Punjab and Haryana High Court in Sn. Guru Maharaj Anahdpur Ashram Trust Guna v. Chander Parkash and others, (1986) I 89 Punjab Law Reporter 319. The Court observed:-

"Once the decree is passed by the trial court, certain rights are vested in the party in whose favour the suit is decided. Thus, the plaintiff E is not entitled to withdraw the suit as a matter of course at any time after the decree is passed by the trial court. In these circumstances, the lower appellate court has acted illegally by allowing the plaintiffs to withdraw the suit after setting aside the judgment and decree of the trial court dismissing the suit."

F In another Allahabad_ decision in Jutha Ram v. Purni Devi and others, ILR (l 970) I Allahabad 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 G 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 one of the respondents and gave an application for withdrawal of suit. Obviously, the intention was to deprive the appellants of the benefit which had accrued to them on account of a declaratory decree having been passed in favour of the plaintiff who H incidentally was their predecessor-in-interest.

-' -

R.R. CHETTIAR v. V. SIVARAMAN [S. SAGHIR AHMAD, J.] 321

In view of the above discussion, it comes out that where a decree A 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 parties to the suit under the decree cannot be taken away by withdrawal of suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's B vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained.

The High Court also committed an error in not considering the impact of Rule 1-A which was inserted in Order 23 by the Code of Civil Procedure (Amendment) Act, 1976 (104of1976). This Rule provides as under:- C

"1-A. When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under Rule I, and a defendant applies to be transposed as a plaintiff under Rule l 0 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question D to be decided as against any of the other defendants."

The appellants before us, no doubt, had not applied before the High Court for being transposed as plaintiffs in place of the original plaintiff who had made an application for withdrawal of suit, but it cannot be overlooked that the plaintiff had transferred the property in suit in favour of the appellants, E and, that too, after a declaration was given in his favour by the trial court that he was the owner of that property. It was thereafter that the appellants were impleaded as respondents in the appeal under Order 22 Rule 10 C.P.C. Once the property was transferred to the appellants and the appellants were also impleaded as respondents in the appeal before the High Court, they were virtually in the position of the plaintiffs. Since they had purchased the F property from the plaintiff after a declaration was given in his favour that he was the owner, a valuable right came to be vested in the appell~.nts which could not be taken away by the plaintiff by withdrawal of the suit unconditionally as the withdrawal was positively to have the effect of destroying the decree already passed in favour of the plaintiff.

As a desperate bid to save the lost battle, learned counsel for plaintiffrespondent No. I contended that since the appellants had obtained the saledeed by fraud, which would not have the effect of conveying any title to them, they cannot, in the matter of withdrawal of suit, intervene nor can they be heard to oppose withdrawal. We are not entering into the legality of the H

A sale-dee, d as it is not the subject matter of the suit under appeal. Since

appellants had already been impleaded as respondents in the appeal on the basis of that sle-deed, they have a right to be heard in the matter of withdrawal of suit;

For the reasons stated above, the appeals are allowed. The impugned B judgment passed by the High Court is set as.ide, the application for withdrawal of suit is rejected and the appeals are remanded to the High Court for deciding it on merit in accorance with. Jaw. The parties shall. be.ar their own cost.

S.M.

Appeal allowed.

'. ..