JUDGMENT
Sinha, J.
1. These two applications have been heard together. In both these applications, Nunu Singh is the petitioner. Nunu Singh, according to his allegations, had ‘bakasht’ lands in the ‘patti’ allotted to him by a civil Court partition to the extent of 18.09 acres. He subsequently acquired 1.58 acres of land in the same ‘patti’ which also became his ‘bakasht’. There was apprehension that the tenants of the village might claim possession of the lands and get the matter referred to the Bakasht Board under the Bihar Bakasht Disputes Settlement Act, 1947 (13 of 1947), and, in fact the tenants laid unfounded claims to the plaintiff’s ‘bakasht’ lands in 1350 Fasli. The petitioner Nunu Singh executed a ‘farzi’ deed of commutation on 6-4-1948, in respect of his ‘bakasht’ lands in favour of his cousin, Muni Nath Singh, just to defeat the unfounded claims of the tenants. The dispute relating to 15 acres and odd (somewhere it is stated 16 acres and odd) of these ‘bakasht’ lands was referred to the Bakasht Board under the aforesaid Act, and the said dispute was fought in the name of Muni Nath Singh on the basis of settlement and commutation made with him. The tenants, however, succeeded as per award of the Bakasht Board dated 24-1-1950.
2. A title suit, being title suit No. 58 of 1950, was instituted by Muni Nath Singh “as plaintiff No. 1 and Nunu Singh as plaintiff No. 2 against the successful tenants in the Bakasht Board dispute as defendants in the Court of the Munsif at Barh on 15-6-1950. The alleged market-value of the suit lands was put at Rs. 2,000/-, and Rs. 100/-was claimed as mesne profits for the year 1357 Fasli. There was also a claim for future mesne profits. The suit was related to 15 acres and odd (or 16 acres and odd) which were the subject-matter of the award aforesaid in favour of the defendants of that suit. It appears that when the plaint was filed, the office reported that the suit lands above should be valued at the market rate. The relevant portion of the report was to the following effect:
“The lands in dispute are nearly 16 Ac. & 50 1/2 Dec. The price of lands has much increased since. The plaintiffs may therefore be asked to supply present market value and to pay court-fee thereon.”
3. The plaintiffs then stated that the valuation given in the plaint was the market-value of the property. Thereupon, the learned Munsif called for a further report from the office. The order sheet dated 1-7-1950, shows that the court-fee paid was reported by the Sarishtadar to be sufficient, and then the plaint was admitted. During the pendency of the suit, on 14-11-1950, plaintiff No. 1 Muni Nath Singh sold the entire ‘bakasht’ lands, measuring more than 19 acres, to certain persons for a sum of Rs. 11,000/-. Those transferees were added as plaintiffs 3 to 9 of that suit. On 30-8-1951, plaintiff No. 2, the present petitioner, made an application for permission to withdraw from the suit, but this petition was rejected on 3-9-1951. The plaintiff unsuccessfully moved this Court, and it was observed by this Court that, in view of the fact that an application for transfer of this suit to the Court of the Subordinate Judge at Patna, where another title suit, to which reference will be immediately made, was pending, the petitioner should move the Subordinate Judge. It so happened that the transfer petition was dismissed. Thereupon, the petitioner filed another petition on 27-11-1951, for permission to withdraw from the suit, and that petition also was dismissed on 8-12-1951. The Civil Revision No. 95 of
1952 is directed against that order of the learned Munsif refusing permission to the petitioner to withdraw from the suit.
4. On 10-2-1951, that is, within three months from the date of the aforesaid sale to plaintiffs 3 to 9 of title suit No. 58 of 19.50 of Munsif’s Court, Barh, the petitioner Nunu Singh filed title suit No. 21 of 1951 in the third court of the Subordinate Judge at Patna in respect of the entire ‘bakasht’ lands, namely, 19 acres and odd, on the allegation that Muni Nath Singh abused the trust reposed in him by executing a sale deed in favour of plaintiffs 3 to 9 of the Barh suit, and, in fact, there was no settlement of any ‘bakasht’ land with him by the petitioner. The petitioner sought declaration of his title to the entire ‘bakasht’ lands aforesaid and prayed for recovery of possession in respect of the area of the ‘bakasht’ lands which were held by the Bakasht Board to be in possession of the defendants of that suit, and for confirmation of possession with respect to the rest. In the Patna Suit, Muni Nath Singh figures as defendant No. 10, defendant second party; the purchasers from him are defendants third party, and the tenants defendants of the Barh suit are defendants first party. This Patna suit is revalued at Rs. 65,000/-, and court-fee to the tune of Rs. 2,557/8/- has been paid on the plaint.
The learned Subordinate Judge accepted the value for the time being, but observed that this matter of court-fee will be raised again at the time of hearing of the suit. Defendants third party of the Patna suit filed an application for stay of further proceedings of this Patna suit on the ground that the previously instituted title suit at Barh was pending decision in which the same matters were substantially in issue. The Additional Subordinate Judge, second Court, has by his order dated 29-1-1953, stayed further proceedings of title with No. 21735 of 1951752 of his court pending decision of title suit No. 58 of 1950 of the Munsif’s Court at Barh. This order is the subject matter of Civil Revision No. 84 of 1953.
5. I will first consider Civil Revision application No. 95 of 1952. The petitioner made the application for withdrawing from the suit under the provisions of Order 23, Rule 1, Civil P. C. The learned Munsif has, in dismissing the application for withdrawal, made the following observations :
“(1) The ground of plaintiff No. 2 that he has already filed a title suit in the 3rd Court of the Subordinate Judge, Patna (T. S. No. 21 of 1951) claiming the land in dispute as his bakasht and it is unnecessary for him to prosecute this suit is hardly available to him after the dismissal of the transfer petition.”
(2) “It is true that plaintiff No. 2 does not claim any relief in the plaint of this suit but It is also clear that he has joined in it.”
(3) “The learned lawyers for the defendants submit that they will have no opportunity to cross-examine plaintiff No. 2 who has along with plaintiff No. 1 impeached their title and possession in the plaint.”
(4) “I would have very probably allowed plaintiff No. 2 to withdraw from the suit if he had made this prayer without making any further allegation. The allegations made by him in his petition are such that they may operate to the great detriment of the interest claimed by plaintiff No. 1 and his purchasers plaintiffs Nos. 3 to 9.”
6. I really do not find any connection between
the rejection of the transfer petition and the question of the withdrawal of the plaintiff Nunu Singh from the Barh suit. The fact that the petitioner joined as plaintiff in the Barh suit needed no comment. Even if the petitioner is not allowed to withdraw from the suit, that fact alone will not necessarily make the petitioner available for cross-examination by the defendants. The petition filed by the petitioner for withdrawal from the suit has already been filed and is on record and will certainly remain on record whether the petitioner is allowed to withdraw from the suit or not and the mere fact of filing of this petition should not have been allowed to affect the judgment of the Court below in passing orders upon the application for withdrawal. I do not feel impressed with any of these observations which have been made the grounds for rejection of the application for withdrawal, and they appear to me to be mostly irrelevant. The question before the learned Munsif was whether Order 23, Rule 1, Civil P. C. had any application to the facts of the present case and whether the petitioner had the right to withdraw from the suit without the consent of the other co-plaintiff.
7. Order 23, Rule 1 runs as follows:
“(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other 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 abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the per-mission referred to in Sub-rule (2), 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.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.”
8. According to Sub-rule (1) of this rule, the plaintiff may “withdraw his suit or abandon part of his claim” after the institution of the suit. Sub-rule (2) says that the Court may allow the plaintiff “permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim” if the Court is satisfied that the suit was bound to fail by reason of some formal defect or for some other sufficient ground. Sub-rule (3) refers back to Sub-rule (2) and empowers the Court to award such costs as it thinks fit against the plaintiff if he withdraws from the suit or abandons part of his claim without the permission referred to in Sub-rule (2), and it further says that the plaintiff shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Sub-rule (4) says that nothing in that rule shall be deemed to authorise the Court to
permit one of several plaintiffs to withdraw without the consent of the other plaintiffs.
9. The question is whether Sub-rule (1) of Rule 1 is subject to Sub-rule (4) and whether in all cases one of several plaintiffs cannot withdraw from the suit without the consent of the other plaintiffs. The language used in Sub-rule (1) is different from the language used in Sub-rule (2). Sub-rule (1) is absolutely unconditional and it entitles ‘the’ plaintiff to withdraw ‘his’ suit or abandon part of ‘his’ claim. Sub-rule (2), on the other hand, enables the plaintiff to withdraw from such suit or abandon such ‘part of a claim’. The important words have been underlined (here in ‘) by me. As Sub-rule (1) is worded, the Legislature puts no fetters upon the plaintiff to withdraw his suit. The plaintiff, if he likes, can withdraw his suit or abandon part of his claim without any hindrance, and no permission is needed if the plaintiff withdraws his suit or abandons part of his claim. The expression “the plaintiff” must mean, in my opinion, either the sole plaintiff or the entire body of plaintiffs. If the sole plaintiff or the entire body of plaintiffs withdraw his or their suit or abandon part of his or their claim, no permission of the Court is needed. If, on the other hand, the plaintiff desires to withdraw the suit or abandon part of his claim with liberty to institute a fresh suit in respect of the subject-matter of the suit or such part of the claim, he is to obtain the permission of the Court under Sub-rule (2) and the permission can be given on such terms as the Court thinks fit and proper.
Sub-rule (3) says that if the plaintiff withdraws, in circumstances referred to in that sub-rule, without the permission of the Court, he shall be liable for costs and shall further be precluded from instituting any fresh suit in respect of the same subject-matter or such part of the claim. Sub-rule (4), which immediately follows Sub-rule (3), adds another obstacle in the way of the plaintiff if there are more than one plaintiff in the suit, and there could be no withdrawal from the suit without the consent of the other plaintiffs. If there are more plaintiffs than one and if some of the plaintiffs want to withdraw from the suit without the liberty to institute a fresh suit in respect of the same subject-matter or such part of the claim, such a case is not covered by any of these sub-rules. The present case is one such. In this case, the petitioner wants to withdraw from the suit without liberty to institute a fresh suit in respect of the same subject-matter. His case, therefore, is not covered by Rule 1 of Order 23, Civil P. C. There, is, therefore, no provision in the Code to cover case like the present one and the Court has to act under its inherent powers. If the Court has to invoke its inherent powers, it is also entitled to impose such conditions as the circumstances of the case require.
10. As I read these sub-rules of Rule 1, in my judgment, Sub-rule (4) does not govern Sub-rule (i) which was for the first time brought into the Statute Book in 1008; the Sub-rules (2) to (4) were already there even in the Code of 1882; and that in a case where one of the several plaintiffs desires to withdraw from the suit without the liberty to bring a fresh suit in respect of the subject-matter of such suit or such part of the claim, such a case is outside the provision of Order 23, Rule 1. I am amply supported in the view which I have taken of these sub-rules of Rule 1 by a long line of cases of different Courts and the latest of these cases is the case of — ‘Baidya Nath v. Shyama Sundar’, AIR 1943 Cal 427 (A). This Calcutta case has reviewed all the
previous decisions of the different High Courts, and it is not necessary for me to reconsider those cases. Both parties relied upon this case.
11. Mr. P.R. Das, appearing on behalf of the opposite party, supported the order moved against, but, upon the authority of this case, he submitted that in suitable cases, as was held in the above noted case, one of the several plaintiffs, who wants to withdraw from, the suit, may be added as a party defendant to the action as was done in several cases in this country which were referred to in the Calcutta case. Mr. Lal Narayan Sinha, appearing on behalf of the petitioner, welcomed the suggestion of Mr. Das and he agreed that the petitioner should be added as a defendant to the suit. In this view of the matter, it is not necessary to seriously consider the argument of Mr. Das that, as there was no question of jurisdiction, this Court should not interfere with the order passed. As I have already indicated, the learned Munsif has not considered the implications of the sub-rules of Rule 1 of Order 23, and, if it was necessary to hold, I should have found that the Court below, in exercise of its jurisdiction, has acted with grave and material irregularity in rejecting the application of the petitioner on the grounds mentioned by it. In the circumstances, aforesaid, I would allow the application and direct that the petitioner Nunu Singh be removed from the category of plaintiff and be added as a defendant to the suit pending before the learned Munsif at Barh.
12. The other application (Civil Revision No. 84 of 1953) will have to be decided upon a consideration of the provisions of Section 10 and Section 151, Civil P.C. It would be better to mention the reliefs claimed in the two suits. The following reliefs have been claimed in the suit pending before the Munsif at Barh which relates either to 15 acres and odd or 16 acres and odd which were the subject-matter of the award by the Bakasht Board:
“(1) That on determination of the title of plaintiff No. 1 and absence of title of the defendants, the Court may be pleased to hold and declare that plaintiff No. 1 has acquired raiyati right in the land in suit entered in schedule No. 2 by virtue of the perpetual settlement and that the defendants have got no title to the land in suit.
(2) That on the determination of relief No. 1, plaintiff No. 1 may be awarded possession and occupation over the land in suit entered in schedule 2 on dispossessing the defendants.
(3) That a decree for damages in respect of the price of paddy and rabbi crops for 1357 Ps. and a decree for future mesne profits till the day of recovery of possession may be passed in favour of plaintiff No. 1 against the defendants.
(4) Costs of this suit may be awarded to plaintiff No. 1 against the defendants.
(5) Such other reliefs as may be deemed proper may be granted to the plaintiffs.”
It is apparent that no relief has been asked for by plaintiff No. 2 (the petitioner) and the reliefs which have been asked for by plaintiff No. 1 are against the defendants, namely, the tenants in whose favour the Bakasht Board made the award. When we come to the Patna suit, we find the following reliefs prayed for:
” (1) A declaration that the lands set out in schedule A of the plaint are bakasht lands and belong to the plaintiff.
(2) The plaintiff is not bound by the deed of 6-4-1948, the sale-deed dated 14-11-1950 nor the order of the Bakasht Board dated 24-1-1950.
(3) Recovery of possession of the lands set out in schedule B of the plaint and confirmation
of possession of the rest.
(4) Mesne profits pendente lite and till recovery of possession.
(5) Costs and other proper reliefs.”
In this case, a declaration is sought in respect of the entire ‘bakasht’ lands, more than 19 acres, and relief No. 3 speaks of recovery of possession in respect of schedule B lands (the lands which were the subject-matter of the award by the Bakasht Board) and of confirmation of possession in respect of the rest.
13. Now, Section 10, Civil P.C. runs as follows:
“No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.”
This section prohibits a Court from proceeding with the trial of any suit if the matter in issue in that suit is directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in a Court having jurisdiction to grant the relief claimed, The requirements for the application of this section are, (1) the matter in issue is directly and substantially the same in both the suits; (2) same parties or parties claiming under the same title; and (3) the Court in which the previously instituted suit is pending is competent to grant the relief claimed in the subsequent suit.
14. Mr. P.R. Das has vehemently argued that the issues in the two suits are directly and substantially the same, that the parties are not different and further that the valuation of the suit in the Patna Court has been unduly enhanced just to oust the jurisdiction of the Barh Munsif’s Court; and, in that view of the matter, it is argued that all the requirements of Section 10 are complied with. In the alternative, it is argued that, if Section 10 has no application, the Court has power under Section 151, Civil P. C. to stay the trial of the Patna suit till the pendency of the suit in the Barh Court.
15. In the earlier part of my judgment, I have indicated that the value of the suit land in the Barh Court, which is either 15 acres and odd or 16 acres and odd, has been fixed at Rs. 2,000/- only and the valuation of the suit land in the Patna suit has been fixed at Rs. 65,000/- and that value has been tentatively accepted, the Court having reserved the power to re-open the question of valuation at the time of hearing. It is obvious, in my opinion, therefore, that the value of the suit land in the Patna Court is very much beyond the pecuniary jurisdiction of the Munsif’s Court at Barh which is not more than Rs. 4,000/-. I would not like to go into the question at the present moment whether the valuation of the suit land in the Barh suit is proper or not, but it must be held that the valuation given by the plaintiff in the Patna suit does not appear to me to be an over-estimate. The learned Subordinate Judge also held doubt about the adequacy of the valuation given, and it cannot be said in this case that
inclusion of larger area in the Patna suit was “to put a blemish upon an otherwise immaculate resemblance” as was said in the case of — ‘Durga Prasad v. Kantichandra’, AIR 1935 Cal 1 (B).
16. In that view of the matter, in my opinion, one of the conditions of the application of Section 10 is not fulfilled. It is, therefore, not necessary to refer to cases of — ‘Wahid-un-nisa Bibi v. Zamin Ali Shah‘, AIR 1920 All 70 (C); — ‘Joti Prasad v. Emperor‘, AIR 1920 All 265 (D); — ‘AIR 1935 Cal 1 (B)’ and — ‘Shamaji Narayan v. Govind Rangacharya‘, AIR 1945 Born 45 (E) which deal with the considerations which should weigh with the Court in coming to the conclusion whether the issues in two suits are directly and substantially the same or not. The learned Subordinate Judge tried to get over the difficulty about the pecuniary competency of the Barh Court to hear the case pending before him by saying that the plaintiff wanted recovery of possession in the Patna suit in respect of only 15.81 acres which are the only lands claimed by the defendants first party in the Patna Court as well as the Barh Court. This is not so. The plaintiff has claimed title in the Patna suit to lands measuring 13.67 acres while the area of the suit land in the Barh suit is only 15.81 acres or so which were the subject-matter of the award by the Bakasht Board.
The learned Subordinate Judge also held that he found substance in the argument put forward by the defendants to the effect that the plaintiff (the petitioner) had intentionally put higher value of the suit lands in the Patna Court in spite of the fact that from the ordersheet it appears that the Court was in doubt about the adequacy of the valuation put in the plaint. It was also suggested that the area of the land in the Patna suit has been increased in order to oust the pecuniary jurisdiction of the Munsif at Barh.
17. In my opinion, this is not borne out by the record- If, as I hold, the Munsif in the Barh suit is not competent to hear the suit pending in the Subordinate Judge’s Court at Patna, there is no merit in the apprehension of the learned Subordinate Judge that there was likelihood of two conflicting decisions. Even if there be conflicting decisions, the decision of the Barh Munsif’s Court will not in any manner affect the decision of the Subordinate Judge in the Patna suit. It is true that in suitable cases if Section 10 has no application, the trial of the suit can be stayed under the inherent powers of the Court. In the present case, however, I find that it would not be in aid of justice to stay the trial of the suit at Patna when the subject-matter of the suit is larger and is beyond the pecuniary competence of the Munsif at Barh, especially when a large number of witnesses nave already been examined by the plaintiff and the application for stay was made at a very late stage when only a few of the witnesses for the plaintiff were left to be examined.
18. I would, accordingly, allow this application, set aside the order of the learned Subordinate Judge dated 29-1-1953, and direct that he should proceed with the trial of the suit. In the circumstances of these cases, I direct that parties will bear their own costs of these applications.
Ramaswami, J.
19. I agree.