Sharad Kumar Sharma, J
1. An interesting question which has evolved for consideration in the present Second Appeal arises from the following circumstances :-
2. Briefly put, the case of the plaintiff/respondent was that the property, in dispute, was owned by one Dr. Amrit Lal Dutta, who stood recorded in the
Municipal records. Dr. Amrit Lal Dutta met with the sad demise on 30.01.1978, and after his death, his wife Smt. Ralish Dutta also died. Late Mr.
Amrit Lal Dutta and his late wife Smt. Ralish Dutta were succeeded by their only son Lt. Col. Dev Bharat Dutta and two daughters Smt. Shanti and
Smt. Aruna Mitra.
3. Later on a Testamentary Case No. 6 of 1978, Lt. Col. Dev Bharat Dutta Vs. Smt. Ralish Dutta, for the grant of probate over the estate left behind
by late Mr. Amrit Lal Dutta was instituted. It was based on the will executed by him on 20.11.1974. The said probate case was initially granted by
lower court vide its order / judgment dated 30.08.1997. However, the plaintiff/respondent instituted Misc. Case No. 20 of 2004, Ram Krishna Vs.
Ranjana, against the grant of probate on 30.08.1997, also stood dismissed and the property, in dispute, thereafter, stood recorded in the Municipal
records in the name of his son Lt. Col. Dev Bharat Dutta.
4. The plaintiff/respondent is said to have instituted the instant Suit on 26.10.2003, based on the fact that late Mr. Amrit Lal Dutta had later cancelled
the will dated 20.10.1974, and had also cancelled his codicil, which was executed by him. The plaintiff/respondent case in the suit was based on the
fact that prior to his death, late Amrit Lal Dutta had bequeathed his property to his wife and based on the fact of execution of will, it is claimed that
she was not aware of the bequeath earlier, thus on that basis, she had claimed to be exclusive owner of the property. Hence, she instituted suit and
prayed for a decree of permanent injunction as a restraint against defendant/appellant, who according to plaintiff/respondent was deliberately
interfering in her possession and title. Later on, she has pleaded that at the time when the issues were being framed, she was made aware of the fact
of execution of the sale deed dated 20.04.2007 in favour of one Sanjay Mohan Uniyal (not party to the suit), that the property in dispute was sold by
defendant/appellant on 20.04.2007, which she contends that sale deed was without any authority of law, as there was no saleable right vested with the
defendant/appellant.
5. Whereas defendant/appellants in their written statement had claimed their right based on will dated 04.06.1962, which was later cancelled by
another will dated 20.10.1974, by virtue of which, defendant/appellant has been made as executor of the estate of late Dr. Amrit Lal Dutta.
Plaintiff/respondent who was daughter of Mrs. Aruna Mitra claimed right over the property by virtue of the suit, in question, being Natini of late Dr.
Amrit Lal Dutta. Mrs. Aruna Mitra met with sad demise on 10.03.1979. Record shows that in Misc. Case No. 20 of 1995, which was instituted
against defendant/respondent, in which, an order was passed on 21.10.2002 and Lt. Col. Dev Bharat Dutta, divested his rights over the property to
defendant/appellant No.1, who claimed their right based on order dated 21.10.2002, passed in Misc. Case No. 20 of 1995. Thus defendant/appellants
are said to have renounced their rights over the property due to the sale deed dated 20.04.2007, executed by them in favour of one Mr. Sanjay Mohan
Uniyal, which remained unchallenged despite of the fact that plaintiff/respondent had a knowledge of it, as she sought an amendment on its basis, but
without seeking any relief against the sale deed 20.04.2007, meaning thereby, she acquiesced her rights.
6. The plaintiff/respondent, herein, had instituted a Suit being Suit No. 700 of 2003, Ranjana Pathaniya Vs. Ram Krishna Math and others. In the Suit
thus instituted on 26.10.2003, the plaintiff has sought for a decree of permanent injunction in relation to the property, which was more particularly
detailed at the foot of the plaint, constituting of a property bearing Municipal No. 278 Rajpur Road-I, (Old No. 63-B Rajpur Road, Dehradun). The
schedule of the property given at the foot of the plaint, it described the precinct of the property also.
7. While the Suit was being contested, the plaintiff/respondent on 07.01.2010, admittedly, had moved an application invoking Order 6 Rule 17 of the
CPC, wherein, by virtue of said application, the plaintiff has sought to incorporate an amendment in the plaint, in its paragraph 7 to the following effect:
“
20.04.2007
â€
8. If the proposed amendment as sought for by the plaintiff/respondent by her application dated 07.01.2010, is taken into consideration, in fact, the
plaintiff/respondent by virtue of the amendment had tried to draw an inferences and effect which were flowing from the execution of the sale deed
dated 20.04.2007 in favour of Mr. Sanjay Mohan Uniyal. The very nature of amendment was questioning the sellers right to convey the property by
sale deed dated 20.04.2007. The argument of the learned counsel for the defendant/appellant, before this Court is that this proposed amendment of
07.01.2010 as sought for by the plaintiff/respondent before the Trial Court was allowed and the same was permitted to be incorporated in the plaint.
As a consequence of allowing of the amendment application, the argument which is extended by defendant/appellant was that the effect of the
amendment would be that the plaintiff was conscious of the pros and cons, which was flowing from the sale deed dated 20.04.2007, said to have been
executed by defendant/appellants in favour of Mr. Sanjay Mohan Uniyal. But, despite of being conscious about the said sale deed, being bad as per
her pleading, the argument is that the plaintiff/respondent has not simultaneously claimed for any amendment of the relief clause in the Suit, seeking
any relief as against the sale deed dated 20.04.2007, executed in favour of Mr. Sanjay Mohan Uniyal.
9. In other words, what the counsel for the defendant/appellants wants to canvass before the Court is that as soon as the plaintiff/respondent has
sought an amendment in the pleading of the plaint in relation to the sale deed and had voluntarily avoided to seek any relief against the sale deed in the
Suit by virtue of an amendment, despite plea of the same being without authority. Then, in that eventuality, even if the Suit is decided on merits, then
too in subsequent proceedings, the bar of Order 2 Rule 2 as far as it relates to the sale deed dated 20.04.2007 or for questioning any issue arising out
of it, would come into play. But in the present case, a very peculiar situation which has occurred later was that though the suit was instituted as back
as on 26.10.2003, the amendment in the pleading was sought only on 07.10.2010, thereafter, the plaintiff/respondent has moved an application on
10.09.2012, wherein, she has sought a permission to withdraw the suit though the prayer incorporated therein in the application was that she has also
sought a liberty to present a new Suit in future, if required. The relief claimed in the said application, paper No. 38A was to the following effect :-
“
â€
10. The application thus preferred by the plaintiff/respondent on 10.09.2012, for withdrawing the Suit, being Paper No. 38A, was considered by the
learned Trial Court and the learned Trial Court vide its judgment and order dated 25.09.2012, had allowed the application, Paper No. 38A1 and what is
more important to be pointed out at this juncture is that the application Paper No. 38A, as preferred by the plaintiff/respondent for withdrawing the
Suit was treated as to be an application under Order 23 Rule 1 of the C.P.C. which is quoted hereunder:
“1. 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:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit
nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such
other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of
the minor or such other person.
(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) Where the plaintiff -
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award
and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(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.]â€
11. In accordance with the intention of the Legislature, the provisions contained under Order 23 Rule 1, which starts with the heading withdrawal of a
Suit on abandonment of the suit or a part of the plaint, meaning thereby, if Rule 1 is attracted for the purposes of withdrawing the Suit, its logical
conclusion which would follow is that the claim raised in the suit, which is based on the certain set of pleadings, which are incorporated in the plaint
that has been sought to be abandoned and abandonment here would mean, complete cessation of right to re-agitate a claim or the same relief based on
same set of pleadings or circumstances in future, which has been raised in the plaint, under the given set of allegations, which has been pleaded in the
plaint itself.
12. The argument of the learned counsel for the defendant/appellants is that as soon as the plaintiff/respondent has sought a withdrawal of a plaint
under Order 23 Rule 1, in that eventuality, it would amount that it was her application for withdrawal of suit as a whole, i.e. Paper No. 38A1 was
allowed and in such circumstances, the withdrawal of suit by plaintiff/respondent itself will not amount to a decree as it is no an adjudication of right on
merits, and thus, the said judgment / order of withdrawal of the Suit cannot not be made appealable under Section 96 of the C.P.C. at the behest of the
plaintiff/respondent, herself, whose application for withdrawal has been allowed. Because it was not an order which was detrimental to her interest or
contrary to her claim. Particularly, when she herself has sought a prayer to dismiss the suit as withdrawn and which stood granted. Thus, it would
amount to getting the relief which was prayed for and it was granted. Hence, no appeal would lie at the behest of the plaintiff/respondent.
13. Despite of it, being aggrieved against the judgment/order dated 25.09.2012, the respondent/plaintiff had rather preferred a Civil Appeal No. 110 of
2012, Ranjana Pathaniya Vs. Ram Krishna Math and others. The Appellate Court, while considering the impact of the application, Paper No. 38A1,
by virtue of which, the Suit was dismissed under Order 23 Rule 1, the Appellate Court while partly allowing the Appeal of the plaintiff/respondent had
modified the judgment dated 25.09.2012 to the effect that the Appellate Court, in fact, had granted the liberty to the plaintiff to institute a Suit in future.
It is this part of the order, which is being put to challenge by the defendant/appellant in the present second appeal. The part impugned in the present
Second Appeal is to the following effect :
“
0 25.9.12
â€
14. When the Second Appeal was instituted on 26.12.2016, the same was admitted by the Court vide its order dated 09.03.2016 and the following
substantial question of law was framed :-
“Whether lower appellate court committed error of law in granting permission to institute fresh Suit which will be a Suit as it is filed by plaintiff
regardless of being barred by time as well as by the principle of estoppels or acquiescence?â€
15. While framing the said substantial question of law, the notices were issued to the respondent and in compliance thereto, the appellant has taken
steps on 5th March, 2016, and it is reported by the Registry on 12th May, 2016, that notices sent by this Court has been received by the respondent
through his son and despite of service of notice as back as on 12th May, 2016, the respondent had not put in appearance to contest the second appeal.
Consequently, this Court vide its order dated 21st May, 2019, had proceeded to direct the second appeal to be heard and decided ex parte as against
the plaintiff/respondent, to whom the notices were already served.
16. Having heard the learned counsel for the appellant on the substantial question of law as framed by this Court, this Court is of the opinion that the
substantial question of law as framed on 9.03.2016could be answered in the following manner :-
1. The relief so far it relates to the sale deed dated 20.04.2007, since was not sought for, to be questioned by virtue of the amendment which was
sought by plaintiff/respondent and which was incorporated in para 7 of the plaint at the behest of the plaintiff/respondent, hence, the bar of estoppel
and acquiescence will come into play, as soon as the suit was withdrawn under Order 23 Rule 1 by plaintiff/respondent on 25.09.2012.
2. The relief by the grant of permission to institute the fresh suit for the same cause of action would not be legally tenable in view of the provisions
contained under Order 2 Rule 2 of the C.P.C. to be read with Order 23 Rule 1 because once the plaintiff/respondent being conscious of the sale deed
dated 20.04.2007, has not sought any relief and has renounced her right to challenge the sale deed, the same could not have been permitted to be
challenged by granting the liberty to institute a fresh suit and that too by the plaintiff/respondent, against first Appellate Court’s order.
3. Since the application preferred by the plaintiff/respondent, paper No. 38A1, for withdrawing of the suit was filed at the behest of the plaintiff and
the Trial Court has dismissed the suit as withdrawn at the behest of plaintiff/respondent and it was her application which was allowed by invoking the
provisions contained under Order 23 Rule 1, it would amount to the abandonment of the claim as raised in the suit, at least no appeal was maintainable
by a party whose prayer stood granted by the Trial Court’s judgment.
4. The term abandonment here needs to be clarified, that means abandonment in a legal proceedings has not to be interpreted in its limited terms to the
relief claimed in the suit, but rather it has to be considered on its elaborate consideration, the abandonment would always relate to a certain set of
circumstances, which is pleaded and brought on records for the purposes of claiming a relief in the suit. So, if abandonment is permitted by allowing
the application under Order 23 Rule 1, it would amount to a voluntary renouncement of right to raise any claim in relation to the same relief sought for
in the suit in future based on same set of facts in any proceedings and on the basis of the pleadings which has been the subject matter of the suit itself.
17. Even otherwise also, this Court is of the view that as against the order dated 25th September, 2012, where the application of the
plaintiff/respondent for withdrawing of her suit was permitted and it was her application which was allowed, in fact, no appeal could have been
maintainable at her behest, because she was granted the relief which she has claimed by application, paper No.38A1 before this Court. Thus, this
Court is of the view that once the plaintiff/respondent was granted with the prayer, she cannot be said to be aggrieved by the grant of relief of
withdrawal of suit, no appeal would be maintainable at her behest and consequently, the Appellate Court could not have passed the impugned
judgment 28th September, 2013, granting liberty to the plaintiff/respondent to institute a fresh suit on the same set of pleadings or cause of action and
for the same relief on the abandoned of the relief.
18. In view of what has been stated above, this Court is of the view that the first Appellate Court judgment so far it grants liberty to the plaintiff to
institute a fresh suit is contrary to the very intention and legislative purpose of Order 23 Rule 1 of the C.P.C. and permission to file fresh suit under the
same set of circumstances, which is present in the case. Hence, the Second Appeal is allowed and the impugned judgment dated 28th September,
2013, so far it grants the relief to the appellant by modifying the judgment and order dated 25.09.2012, granting a right to institute a fresh suit since
being beyond the scope of provisions contained under Order 23 Rule 1 of the CPC, is not sustainable and hence it is quashed.
19. The Second Appeal is allowed and the substantial question as framed on 09.03.2016 is answered in favour of the defendant/appellants.
20. However, there would be no order as to costs.
