JUDGMENT
1. This Second Appeal arises out of the judgment/order dated 18.9.1995 followed by decree dated 8.11.1995 passed by the learned Additional District Judge, West Tripura, Agartala in Title Appeal
No. 70 of 1993 arising out of judgment dated 21.8.1993 followed by decree dated 24.8.1993 passed by the learned Sadar Munisff, Agartala, West Tripura in Tile Suit No. 151 of 1982.
2. By the appellate Judgment and decree, the learned first appellate court allowed the appeal, set aside the judgment and decree passed by the learned trial court and allowed the plaintiffs to withdraw the suit.
3. At the time of admission of the appeal, this court vide order dated 16.1.1996 formulated the following substantial question of law to be decided :-
“Whether the order of the First Appellate Court according permission to withdraw the suit after holding that the appeal was infructuous is tenable in law ?”
4. The case, in short, is that the plaintiff-respondent Shri Debbarma and others filed Title Suit No. 151 of 1982 against the defendant-appellants seeking perpetual injunction contending, inter alia, that the plaintiff-respondents are the owners and possessors of the suit land which is a garden appertaining to C.S. Plot No. 7232 under Khatian No. 14630 in Mouja Agartala Sheet No. 8 and the suit land has been under the possession of the plaintiff-respondents who by cultivating and growing vegetables therein exercised their possession, but the defendant-appellants and their relatives have their homestead in C.S. Plot No. 7235 in the western side of the suit land and on 14.8.1982, the defendant-appellant tried to remove the western fencing in order to encroach upon the suit land, hence the suit.
5. The defendant-appellants also contested the suit filing written statement contending, inter alia, that the defendant-appellants have been in possession of the suit land since from their ancestors and there is a passage through the garden which is used by them being the only passage for ingress and outgress.
6. After recording evidence and hearing the parties the learned trial court dismissed the suit holding that the suit is maintainable under Issue No. (i), holding that the defendant-appellants being owner of C.S. Plot No. 7235 having a passage marked ‘A’ in the map attached to the plaint, holding that the defendant-appellants are also in possession of the suit land and also holding that the defendant-appellants are in joint possession of the suit land with the plaintiff-respondents and as such the suit was dismissed.
7. Being aggrieved, the plaintiff-respondents preferred first appeal before the learned District Judge, West Tripura, Agartala and
eventually the matter was transferred to the court of learned Additional District Judge, West Tripura, Agartala, who by order dated 18.9.1995 disposed of the appeal.
8. During pendency of the appeal, the plaintiff respondents being appellants in the First Appeal filed a petition on 27.1.1995 under Order 23 Rule 1(3) C.P.C. praying for passing an order setting aside the judgment and decree dated 21.8.1993 passed by the learned Munsiff, Agartala, West Tripura in Title Suit No. 151 of 1982 and to permit the plaintiff-respondents to withdraw the suit with a liberty to file afresh on the same cause of action.
9. The respondents therein (the present appellants) raised objection contending, inter alia, that the learned trial court after full trial dismissed the suit on merit and as such the said judgment cannot be set aside on the plea of withdrawal of the appeal, but it required to be decided on merit, but the learned first appellate court allowed the petition permitting the suit to be withdrawn and set aside the judgment and decree of the learned trial court. Hence this Second Appeal.
10. In the present appeal, the following points remain admitted :-
(a) The plaintiff-respondents’ Title Suit seeking perpetual injunction stood dismissed on merit after full trial by the learned trial court holding among others the joint possession of the present appellants with the respondents ;
(b) The present respondents preferred First Appeal against the contested judgment of the learned trial court;
(c) In the pending appeal, the appellants filed a petition under Order 23 Rule 1(3) C.P.C. seeking permission to withdraw the suit. The learned first appellate court allowed the withdrawal of the suit and set aside the judgment and decree of the learned trial court. The liberty was given to the appellants (respondents herein) to file fresh suit, of course a cost of Rs. 2,000 was awarded ;
11. Now, the question arise whether learned first appellate court can allow withdrawal of a suit during pendency of the appeal and if so, whether a suit already decided on merit followed by a decree could be allowed to be withdrawn by the learned first appellate court affecting the right already accrued to the defendants by virtue of the trial court judgment and whether the learned first appellate court could set aside the contested judgment and decree of the learned trial court without going into the merit in appeal?
12. Dr. H.K. Bhattacharjee, learned counsel appearing on behalf
of the defendant-appellants referred the following citations :-
(i) AIR 1986 Punjab and Haryana 228
(Gurnek Singh and another, appellants v. Gurbachan Singh and others, respondents) ;
(ii) AIR 1984 Punjab and Haryana 221
(Jubedan Begum and others, appellants v. Sekhawant Ali Khan, respondents) ;
(iii) AIR 1983 1983 Madaras 160
(K. Chinna Vaira Thevar, petitioner v. S. Vaira Thevar, respondents);
(iv)(i) AIR 1986 Punjab and Haryana 399
(Shri Guru Maharaj Anandpur Ashram Trust, Guna and others, petitioners v. Chander Parkash and others, respondents) ;
13. From the aforesaid decisions, it appears that withdrawal can be permitted during the pendency of the suit by the learned trial court if he satisfies that the suit may fail due to incurable defect in the pleadings, but in case a suit is dismissed on merit and not for any formal defect, withdrawal cannot be permitted by the learned first appellate court during appeal.
14. Mr. S. Dutta, learned counsel appearing on behalf of the plaintiff-respondents having referred a decision of the Hon’ble Apex Court in the case of Baniram and others, appellants v. Gain and others, respondents reported in AIR 1982 SC 789 submits that the appellate court can allow withdrawal of a suit.
15. 1 have perused the aforecited judgment of the Hon’ble Apex Court. The Hon’ble Apex Court in that judgment has not laid down any ratio. No law has been enunciated by the Hon’ble Apex Court in the aforesaid judgment. The detailed fact is not available in the reported case. Whether the suit was dismissed by the learned trial court on technical ground or whether the learned trial court dismissed the suit on merit is not ascertainable from the reported case, but it can be gathered from the aforesaid one paragraph-judgment of the Hon’ble Apex Court that the suit was dismissed by the learned trial court due to lack of pleadings and as such the Hon’ble Apex Court allowed the party (plaintiffs) to withdraw the suit. For convenience sake, the relevant portion of the aforesaid Judgment of the Hon’ble Apex Court is re-produced below :-
“At this stage Mr. Phadke wishes to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action. Having considered the fact that non-pleading
may prove a technical impediment and may result in the dismissal of the appeal which may impede a fresh adjudication if a point is to be made though belated, we consider it just and proper in the interests of justice to permit the appellant-plaintiff to withdraw the suit with liberty to file a fresh suit as stated hereinabove.”
16. The decision of the Hon’ble Apex Court as quoted above is a judgment simpliciter and not a precedent. From the very language used by the Hon’ble Apex Court in the aforesaid judgment, it reveals that the Hon’ble Apex Court having exercised the power under Article 142 of the Constitution of India allowed the appellant-plaintiff to withdraw the suit with liberty to file afresh. That power to do complete justice enshrined under Article 142 of the Constitution of India empowers the Hon’ble Supreme Court and the Supreme Court alone to exercise such power. Even a High Court has no such power akin to the power as provided under Article 142 of the Constitution of India to do complete justice.
Reference may be had to a recent decision of the Hon’ble Apex Court rendered in the case of C. M. Singh, appellant v. H. P. Krishi Vishva Vidyalaya and others respondents, reported in AIR 2000 SC 3638 and as such the aforecited decision of the Hon’ble Apex Court is not applicable in the case’In hand.
17. Mr. Dutta, learned counsel for the plaintiff-respondents having referred to the provisions of section 107 C.P.C. submlts that the learned appellate court has the same and identical power that of the learned trial court and as such the learned appellate court has the jurisdiction to allow the appellant to withdraw the suit under Order 23 Rule 1(3) C.P.C.
Dr. Bhattacharjee, the learned counsel for the defendant-appellants having relied upon the provision of section 107 C.P.C. submits that the learned appellate court has the same power as that of the learned trial court and there is no quarrel, but the learned trial court itself has no right to allow a suit to be withdrawn in exercise of power under Order 23 Rule 1(3) C.P.C. after the disposal of the suit itself in either way.
18. The legal position is that a suit can be allowed to be withdrawn by the learned trial court so long it is pending, but once the suit was disposed of by passing a contested judgment followed by a decree, the learned trial court became functus officio and as such the decided suit cannot be allowed to be withdrawn even by the learned trial court and as such normally the learned appellate court also cannot exercise the power to allow a suit to be withdrawn, but what the learned appellate court can do, is to allow the with-
drawal of the appeal in view of Order 23 Rule 1 read with section 141 C.P.C.
19. The plaintiff-respondents put the original judgment and decree of dismissal of suit under challenge before the learned first appellate court and as such without setting aside the judgment and decree of the learned trial court on merit, the learned first appellate court cannot allow the suit to be withdrawn. In case the learned appellate court finds after hearing the parties on merit that the learned trial court’s judgment is wrong, perverse and liable to be reversed, the learned appellate court should have allowed the appeal, set aside the learned trial court’s judgment and then only could allow the appellant to withdraw the suit and not before, but in the instant case, the learned first appellate court never dealt with the judgment and decree of the learned trial court. From the impugned judgment and decree of the learned first appellate court it reveals that the learned first appellate court never held the trial court’s judgement to be bad and as such the learned first appellate court quite wrongly and illegally set aside the judgment and decree of the learned trial court.
20. The learned trial court on merit held that the defendant-appellants also had/have the joint possession over the suit land along with the plaintiff-respondents and that finding constituted a vested right of possession in favour of the defendant-appellants and as such the learned first appellate court has no jurisdiction to allow the withdrawal of the suit during the pendency of the appeal without examining the legality of the judgment and decree of the learned trial court. Only in case of a suit being dismissed on technical ground for want of cause of action, defect of parties, non-service of statutory notice and the like, the learned appellate court on appeal can allow the withdrawal of the suit as in that event the defendant acquires no vested right, but once the defendant acquired a vested right by virtue of the dismissal of the suit on merit, the plaintiff cannot be allowed to withdraw the suit in appeal preferred by him against the order of dismissal.
21. Under the aforesaid legal position, I am of the considered opinion that the learned first appellate court has no power to allow the withdrawal of a suit while some vested right was created in favour of the defendant by virtue of the judgment and decree of the learned trial court and as such the impugned order/judgment of the learned first appellate court allowing the suit to be withdrawn is without jurisdiction and is hereby set aside. The learned first appellate court is directed to re-admit the appeal and decide the same on merit.
22. Accordingly, the appeal is allowed as indicated above with no order as to costs.
23. Send down the L.C. records with a copy of this judgment.