Sharad Kumar Sharma, J
1. Before dealing with the case as projected by the learned Senior Counsel for the plaintiff/appellant, which was arising out of impugned order as
passed by the First Appellate Court on 22nd June, 2019 in Civil Appeal No. 26 of 2017, Sanjay Eric Helms Vs. Sri Kishore Singh Negi and others. By
virtue of the impugned order, the learned First Appellate Court, while considering the application preferred by the plaintiff/appellant before it by
invoking the provisions contained under Order 23 Rule 1 (3) of the C.P.C. The plaintiff/appellant has filed an application, being paper No. 28-Ga/1 to
28 Ga/4. In the application, thus preferred in the Appeal by the plaintiff/appellant on 18th March, 2019, he has sought a prayer to the extent that he
may be permitted to withdraw his present Suit with a liberty to file a fresh Suit in regard to the subject matter of the Suit, in question, i.e. for the same
cause of action. It would be essential to refer to the provisions contained under Order 23 Rule 1 (3) of the CPC, 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 persons.
(3) Where the Court is satisfied,â€
(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.â€
2. Order 23 Rule 1 (3) of the CPC provides that it is an exclusive choice of the plaintiffs, who after the institution of the Suit for a specific relief or
decree as against all or some of the defendants, who are parties to the proceedings may withdraw the suit subject to the condition, which has been
provided under Order 23 Rule 1 (3) of the C.P.C. The scope of withdrawal contemplated therein, is (1) where the plaintiff comes up with the case
that the suit may fail because of the formal defects or (2) where the plaintiff invokes the aforesaid provisions, so as to enable him to file fresh suit on
the sufficient grounds, narrated therein in the application under Order 23.
3. The withdrawal as provided therein is only on account of two discrepancies, which are contemplated under Order 23 Rule 1 (3), as referred above.
It is not the scope, which has been pleaded by the plaintiff/appellant in the application preferred by the plaintiff/appellant in the application under Order
23 Rule 1 (3) of the CPC. Furthermore, if the application itself is read in its totality, the exercise of powers for withdrawal of the suit at the behest of
the application preferred by the plaintiff/appellant apart from the fact that it can be on the two contingencies, which are contemplated under Sub-Rule
(3) of Rule 1 of Order 23, it has to be read in exclusion, because the subsequent part of the possession of granting the liberty to the plaintiff/appellant
to institute a fresh suit with regard to the same cause of action, it is an exclusive prerogative of the Court to consider the circumstances prevailing and
as to whether at all at the stage of granting the permission to withdraw the Suit, whether there would be a simultaneous order for granting a
permission to institute a fresh Suit.
4. In order to appreciate the argument, which has bee raised by the learned counsel for the plaintiff/appellant in the light of the ratio as propounded by
the Madras High Court in the case reported in AIR 1971 MADRAS 66, T.W. Ranganathan Vs. T.K. Subramaniam Lnind in Civil Revision Petition
No. 903 of 1969, the reliance, which has been placed by the learned counsel for the plaintiff/appellant is to the contents and ratio as propounded in
para 5 of the said judgment, which is quoted hereunder :-
“5. The learned counsel for the respondents, however, submits that the facts in this case will fall within the ruling of Panchapakesa Ayyar, J., in
Veeraswami v. Lakshmudu AIR1951Mad715. In that case the plaintiff filed a petition to withdraw a suit with permission to file a fresh suit regarding
the same subject P. C. and the court was not willing to grant the permission sought for but passed an order the petitioner may withdraw the suit if he
wants. This is not a case for which permission can be given to withdraw the suit with liberty to bring a fresh suit. Petition is dismissed."" When that
order was challenged in revision before this court, it was expressed that the order passed by the lower court gave an option to the plaintiff to withdraw
the suit if he wants and there is no order by the court dismissing the suit as having been withdrawn. I do not see any similarity between the facts in
that case and the facts arising in this case. In this case the lower court has actually passed an order permitting the petitioner to withdraw the suit
without liberty and providing for the costs of the suit to the respondents and dismissing the suit simultaneously as having been withdrawn on petition.
The learned counsel for the respondents submits that the petitioner could have resisted the dismissal of the suit as having been withdrawn and offered
to go on with the trial of the suit without allowing the suit to be dismissed as having been withdrawn. But from the records it is seen that the lower
court passed an order both in the application as well as in the suit simultaneously and that there was no time lag between the disposal of the application
as well as the suit. Even in the decision in AIR 1951 Mad 715, it has been made clear that when an application is filed for withdrawal of the suit with
permission to file a fresh suit the same cause of action, the court has a right to dismiss the petition telling the petitioner that he might withdraw the suit
if he wants, but it will not give him permission to file a fresh suit regarding the same subject matter, and that such an application must be allowed or
refused in toto and that if the liberty is refused the suit should not be dismissed at once but retained for trial in the usual course and the court cannot
divide the petition into two and accept the withdrawal and refuse the liberty in the same order. In this case the lower appellate court after finding that
the petitioner is not entitled to the liberty sought for should have dismissed the application and given a liberty to the petitioner to proceed with the suit.
But the lower court has, however, proceeded to order the petition permitting him to withdraw the suit without liberty and actually dismissed the suit as
having been withdrawn. The order of the lower court cannot be supported and has to be set aside. I however uphold the order of the lower court that
the petitioner has not made out a ground for giving liberty to file a fresh suit on the same cause of action. The result is that the order giving him
permission to withdraw the suit is set aside and the consequential order passed in the suit dismissing the suit as having been withdrawn on petition is
also set aside. The lower court is directed to restore the suit to file and dispose of the same on merits. As the suit is of the year 1966, the lower court
is directed to dispose of the suit as early as possible. No costs.â€
5. While interpreting the implications and the scope and limits of interference when the parties to the proceedings invoked Order 23 Rule 1 (3), it was
sought to be pressed by the plaintiff/appellant on the ground that when the Court exercises or is ceased to exercise the powers under the aforesaid
provisions contained under Order 23 Rule 1 (3), the Court cannot go beyond the scope of the relief sought for in the application and if there is a prayer
made to withdraw the Suit, then even it is filed at the appellate stage, there could have only been withdrawal of the suit and, there could not have been
direction to withdraw the appeal, which has not been prayed for in the application.
6. The factual backdrop, under which, the present Second Appeal is arising is that the plaintiff/appellant, herein, in July, 2013 has instituted a Suit,
being Suit No. 49 of 2003, Sanjay Eric Helms Vs. Sri Kishore Singh Negi, wherein, the plaintiff/ appellant has prayed for a decree of declaring the
sale deed dated 6th November, 1986, executed by the father of the plaintiff/appellant in favour of the defendants/respondents as to be null and void.
Simultaneously, a prayer was also made for a decree of permanent prohibitory injunction by way of decree of restraint a against the
defendants/respondents from interfering over the property, in question, which was a subject matter of deed of conveyance dated 6th November, 1986.
After the exchange of the pleadings, the Suit proceeded and, ultimately, the learned Trial Court vide its judgment dated 15th July, 2017, had dismissed
the Suit. The dismissal of the Suit by the learned Trial Court on 15.07.2017 was on consideration of the issues, which were framed therein in para 17
of the said judgment, which is quoted hereunder :-
“ -
1. 06.11.86 1, 2, 3
, ?
2. ?
3. ?
4. ?
5. 7 11 0 0 0 ?
6. 34 ?
7. ?â€
7. At this stage, what would be relevant for consideration of this Court for the purposes of considering the impact and manner in which the application
under Order 23 Rule 1 (3) is being dealt with is with regard to the implication, which would be flowing from the determination made by Trial Court on
issue Nos. 5 and 6, particularly, where the issue was raised pertaining to the implications flowing from the bar created by Order 7 Rule 11 and Section
34 of the Specific Relief Act.
8. While dealing with the two issues aforesaid, particularly issue No. 6, which dealt with, with regard to the bar of Section 34 of the Specific Relief
Act, it was with regard to the effect as to what would be the impact on the case due to non seeking of the relief of restoration of possession in the
suit, itself, and particularly when the deed of conveyance executed in 1986 was sought to be cancelled. The Trial Court held that as far as the Suit, in
question, is concerned while dealing with issue No. 6 and in particular, the finding which has been recorded in para 37 of the said judgment, it was held
and found that the nature of relief, which was sought in the Suit was barred by Section 34 of the Act because the defendants/respondent’s
possession in pursuance to the sale deed having been transferred to them was proved before the learned Trial Court by the evidence, which was
considered by it while deciding the Suit on 15th July, 2017. Para 37 of the Trial Court’s judgment reads as under :-
“
34
,
34
â€
9. Hence, the Trial Court while dismissing the Suit, had held that the Suit would be barred by Section 34 of the Act in the absence of there being a
simultaneous principal relief sought for restoration of the possession after the declaration of the deed of conveyance as to be void of 1986.
10. Being aggrieved against the said judgment of the learned Trial Court, the plaintiff/appellant has preferred a Civil Appeal, being Civil Appeal No. 26
of 2017, Sanjay Eric Helms Vs. Sri Kishore Singh Negi and others, questioning the veracity of the judgment and decree dated 15th July, 2017, as
rendered by the Trial Court in Suit No. 49 of 2013, Sanjay Eric Helms Vs. Sri Kishore Singh Negi and others.
11. When the civil appeal itself was pending consideration and it is not a bone of contention by the learned counsel for the plaintiff/appellant that the
First Appeal is nothing but a continuation of the Suit in the appellate proceedings, it is at this stage that the plaintiff/appellant has filed an application
invoking the provision under Order 23 Rule 1 (3), which came up for consideration before the Appellate Court on 22nd June, 2019 and after
considering the rival contentions raised in the objection by defendant/respondent, being paper No. 30 Ga, has allowed the application under Order 23
Rule 1(3) only to the extent of granting the permission to withdraw the Appeal, but as far as the prayer sought for in the application under Order 23
Rule 1 (3) was also to permit to institute a fresh suit for the same cause of action that was denied. The denial by the Appellate Court to grant
permission to the plaintiff/appellant to file fresh suit while allowing the application, paper No. 28-Ga, to grant permission institute a fresh suit, apart
from the fact that in view of the finding recorded in issue No. 6 with regard to the bar created by Section 34 of the Specific Relief Act, the Court has
also held that the withdrawal of the Suit on a premise on account of non formulation of the appropriate specific relief which ought to have been
otherwise prayed for before the Trial Court that could have been permitted to be rectified by the plaintiff/appellant when the suit itself was pending
consideration by invoking the provisions contained under order 6 Rule 17 by necessarily modulating the relief pertaining to the grant of possession as a
consequence of the decree, in question.
12. Admittedly, the Suit, in question, remained pending for a considerable long period for last fourteen years but no such amended relief of possession
was ever sought for or sought for by rectification of relief, particularly, when the fact was that it was the suit for declaration of the sale deed of 1986
to be void, which was executed in favour of the defendant, where the factum of transfer of possession to defendant/respondent was proved by
document as well as by the evidence on record that the defendants were in actual and effective possession over the property, which was conveyed to
them by sale deed of 1986.
13. The learned Appellate Court though has allowed the application, paper No. 28-GA, but, in fact, by the impugned order, has declined to grant
permission to file a fresh Suit, this Court is of the opinion that it has been rightly so for the reason that this Court is of the view that when the Suit itself
was instituted by plaintiff/appellant way back in 2003, and that too in relation to grant a decree and to declare the sale deed of 6th November, 1986, as
to be null and void and in particular, when it is a deed of conveyance, it goes logically without saying that the deed in itself contains a clause with
regard to the actual and physical handing over of the possession and the said fact stood established by the appreciation of the evidence by the learned
Trial Court. In such circumstances, it would be presumed and inferred that the appellant had the knowledge of possession of the
defendants/respondent over the property, in question, but still, he has not invoked the provisions contained under Order 6 Rule 17 to necessarily
amends the relief clause of the Suit and hence, the permission sought for in relation to the relief, which has been admittedly renounced to be availed at
the trial stage, when the plaintiff/appellant already had ample opportunity to amend the relief, now he cannot be permitted by invoking the provisions
contained under Order 23 Rule 1 (3) of the C.P.C. This reasoning is further substantiated from the fact that when the suit itself was instituted in 2013,
the factum of possession of the property, in question, to the defendant/respondent itself stood settled with them by the decipher made in the sale deed
itself. Having not claimed the simultaneous relief for possession at the time when the suit itself was instituted or having failed to seek an amended
relief for possession by filing an appropriate application at an appropriate time under Order 6 Rule 17, when the suit itself was pending consideration,
any implied allowing of the application under Order 23 Rule 1 (3) at the stage of permitting to withdraw the appeal, which otherwise amounts to be
withdrawal of the suit itself by permitting to file a fresh suit for the same cause of action would amount to override the embargo created by the
provisions contained under Order 2 Rule 2 because the resultant effect of allowing the application under Order 23 Rule 1 (3) in its totality would
amount to override the embargo as legally created by the provisions of Order 2 Rule 2 because the plaintiff/appellant had voluntarily chosen rather has
renounced and decided not to seek for the said relief despite of the fact that the defendant/respondent has come up with the specific case that the
possession was vested with him after the deed of conveyance executed in their favour on 6th November, 1986.
14. The distinction, which has been carved out by the Senior Counsel for the plaintiff/appellant in the light of the judgment of the Madras High Court
(Supra) would not be of any avail to the plaintiff/appellant for the reasons that it was an interpretation, which was given pertaining to the scope of
interference in an application for withdrawal, whether it has to be allowed in its totality or partially. While propounding the ratio in the light of the
observation made in para 5, the Madras High Court has not dealt with the controversy in the light of the exact implications of Order 23 Rule 1 (3), by
the said judgment where it has been exclusively left within the prerogative and domain of the Court while considering the application for withdrawal of
the Suit whether the liberty to institute a fresh suit could be reserved or not. Here, when the impugned order was passed on an application, paper No.
28-Ga, permitting to withdraw the appeal, it would be read as if it was in relation to the withdrawal of the suit, itself, which is a continuity of the
proceedings of the suit and as far as declining to grant the permission to institute the fresh suit was well within the scope of the provision of the law
because by a tacit permission sought for to file fresh suit will not result into the revival of relief, which was otherwise voluntarily abandoned by the
plaintiff/appellant and would now be barred by law, when the Suit itself was pending consideration before it.
15. Consequently, this Court is of the view that the reasoning which has been assigned by the Appellate Court while allowing the application under
Order 23 Rule 1 (3) for withdrawal of the Appeal which amounts to the withdrawal of the suit too since being in continuation to the proceedings and
declining to grant the relief to institute a fresh suit was well within the scope of the law as enunciated in the CPC.
16. Thus this Court does not find any merit in the Second Appeal. The Same is accordingly dismissed.
