JUDGMENT
T. Nanda Kumar Singh, J.
1. Heard Mr. C.K.S. Baruah, learned Senior Counsel assisted by Mr. P.P. Das for the appellants/defendants and Mr. M.H. Rajbarbhuiyan, learned Counsel appearing for the respondents/plaintiffs.
2. The challenge in this second appeal is to the Judgment dated 27.3.2002 passed by the learned Civil Judge (Senior Division) No. 2, Guwahati in Title Appeal No. 43/2000 dismissing the appeal and upholding the Judgment and decree dated 9.6.2000 passed by the learned Civil Judge (Junior Division) No. 1, Guwahati in T.S. No. 7/91 decreeing the suit in favour of the plaintiffs/respondents.
3. The short facts which would be sufficient for deciding the present appeal are that the respondents/plaintiffs filed the Title Suit No. 7/91 against the present appellants/defendants for a decree of ejectment of the appellant-defendant and his men from the suit premises described in Schedule A to the plaint and also for a decree for arrear of house rent to be paid by the appellants/defendants amounting to Rs. 1440/-and Rs. 240/-, Total Rs. 1680/- on the pleaded case that the appellants/defendants are the tenants under the respondents/plaintiffs in respect of the suit premises . In Para 5 of the plaint it had been mentioned that:
Para 5. That previously there was a suit between the plaintiff and defendant No. 1 for ejectment from the house and the said suit was numbered on T.S. No. 61 of 1979 of the court of Sadar Munsiff, Guwahati. The said suit was decreed but on appeal the same was sent on remand on the point whether the arrears of the house rent paid by the defendant No. 1 is adjusted or not. After the Judgment on remand passed by the appellate court it has been noticed that the arrears of advance house rent paid by the defendant No. 1 had not been adjusted till filing of said suit. So the plaintiff withdraw the suit of the Sadar Munsiff, Guwahati with a permission to refile the suit on 25.8.88.
4. From the pleaded case of the respondents/plaintiffs in Title Suit No. 7/91, it is clear that the respondents/plaintiffs had earlier filed the suit being T.S. No. 61/79 in the Court of the learned Sadar Munsiff, Guwahati for ejectment of the appellants/defendants from the suit premises, but the said suit said was to have been withdrawn with the permission to refile the same under the order of the learned Sadar Munsiff, Guwahati dated 25.8.88 passed in Title Suit No. 61/79.
5. The said order of the learned Sadar Munsiff, Guwahati dated 25.8.88 was exhibited as Ext. 3 in the course of trial of the present Title Suit No. 7/81. It would be to and proper to quote the said order of the learned Sadar Munsiff, Guwahati dated 25.8.88. The order dated 25.8.88 reads as follows:
Advocates of the parties filed hazira and present. Petition No. 2615/87 dated 30.3.87 and 3302/87 dt. 25.4.87 filed by the plff petitioner Under Order 23 of the CPC are taken up for hearing. Mr. N. Goswami the learned advocate for the deft objecting the second para of the Petition No. 2615/87 inter alia submitted that the petition for withdrawal was filed only after the deft filed the written statement taking the pleas which is now taken and inserted by the petitioner in para 2 (two) of his Petition No. 3302/87 dt. 25.4.87. In fact this was the defence plea taken by the deft in his w/s. After that the plff came with this petition. Mr. Goswami further submits that if that part of the petition i.e. the leave to institute fresh suit is allowed then deft would be prejudiced. Analysed the record and gone through the pleadings of the parties.
In view of the submission of Mr. Goswami and analyzing the pleadings the petitions are allowed to the extent that the plff is only allowed to withdraw the suit. With this observation both petitions are disposed of.
6. From the bare persual of the order of the learned Sadar Munsiff, Guwahati dated 25.8.88, it is crystal clear that the application filed by the respondents/plaintiffs for withdrawal of Title Suit No. 61/79 with the permission to institute fresh suit was allowed to the extent that the plff is only allowed to withdraw the suit. As such the leave to institute a fresh suit was not granted to the respondent/plaintiff.
7. The present Second appeal is admitted for hearing on the following substantial questions of law:
1. Whether in view of the Exts-Ka and Kha exhibited by the defendants, the Ext-1 could have been relied on to come to the finding of tenancy between the plaintiff and defendants?
2. Whether the suit of the plaintiff was maintainable in view of an earlier T.S. No. 61/79 between the same parties having been withdrawn by the plaintiff without leave of the Court?
8. Mr. C.K.S. Baruah, learned Senior Counsel appearing for the appellants/defendants strenuously submitted that since the earlier Title Suit No. 61/79 filed by the respondent/plaintiff against the appellant/defendant in respect of the same subject matter, had been withdrawn without the permission to file the fresh suit, the present suit i.e. T.S. No. 7/91 cannot be filed against the appellant/defendant in respect of the same subject matter, in as much as, the present Title Suit No. 7/91 is barred by Order 23, Rule 1(4) CPC. For easy reference the relevant portion of the Order 23, Rule 1(4) of the CPC is quoted herein below:
Order 23, Rule 1(4) CPC
Where the plaintiff-
(a) A bandons 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.
9. From bare persual of the Order 23 Rule 1(4), it is clear that if the plaintiff abandons any suit or part of claim under Sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3) of Rule 1 of Order 23 of CPC he shall be precluded from instituting any fresh suit in respect of the same subject matter or such part of the claim.
10. In order to substantiate his submission the learned Senior Counsel had referred to the following decisions of the Apex Court.
1) Sarguja Transport Service v. State Transport Appellate Tribunal, M.P. Gwalior and Ors. .
2) Bakhtawar Singh and Ann v. Sada Kaur and Anr. and
3) Upadhyay and Co. v. State of U.P. and Ors. .
11. The Apex Court in Sarguja Transport Service (supra) had discussed the scope of Order 23 of the CPC. The Apex Court in a clear term held that the principle underlying Rule-1 of Order XXIII of the code is that when a plaintiff once institute a suit in a court and there by avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandonment the earlier suit or by withdrawing it without the permission of the court to file fresh one. The Apex Court further held that-the principle underlying Rule 1 of Order XXIII is applicable on ground of public policy. Para 7 and 8 of the Sarguja Transport Service (supra) reads as follows:
Para 7. The Code as it now stands thus makes a distinction between ‘abandonment’ of a suit and ‘withdrawal’ from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in Sub-rule (3) of Rule 1 of Order XXIII of the Code; he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institute a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh still in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invite beneficial non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting jurist again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above Rule is founded on public policy, but it is not the same as the Rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The Rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the court.
Para-8. The question for our consideration is whether it would nor would not advance the cause of justice, if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed Under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his Counsel finds that the court is not likely to pass an order admitting the petition, request is made by the petitioner or by his Counsel to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A court which unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P. in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court Under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this court in Daryao Case is to be found at page 593 and it is as follows:
If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition Under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other.
12. The ratio laid down in Sarguja Transport Service (supra) was followed by the Apex Court in Upadhyay & Co (supra). The Apex Court further reiterated in Upadhyay & Co. (supra) that the Order XXIII, Rule. 1(4) CPC deals with withdrawal of suit or abandonment of part of the claim. Sub-rule (3) of Rule (1) says that the court may in certain contingencies grant permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject matter of such suit and under Sub-rule (4) of Rule (1) of Order XXIII once the plaintiff had withdrawn from a suit or a part of the claim without permission referred to Sub-rule (3) of Rule (1) he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. Paras 12 and 13 of SCC in Upadhyay & Co. (supra) read as follows:
Para-12. The above principle has been incorporated as a Rule in the realm of suits. Order 23, Rule 1 of the Code of Civil Procedure deals with withdrawal of suit or abandonment of part of the claim. Sub-rule (3) says that the court may in certain contingencies grant permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject matter of such suit. Sub-rule (4) reads thus:
1.(4). Where the plaintiff-
(a) abandons any suit or part of a 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.
Para-13. The aforesaid ban for filing a fresh suit is based on public policy. This court has made the said Rule of public policy applicable to jurisdiction Under Article 226 of the Constitution (Sarguja Transport Service v. State). The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his Counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his Counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned, he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again. The following observations of E.S. Venkataramiah, J. (as the learned Chief Justice then was ) are to be quoted here (SCC p. 12, Para 9).
We are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, nor on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court Under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in the High Court without permission to file a fresh writ petition may not bar other remedies like a suit or petition Under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy Under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.
13. Para-8 of the SCC in Bakhtawar Singh and Anr. (supra) read as follows:
Para-8. The contention of the learned Counsel for the appellants is that since the plaintiffs had withdrawn their earlier suit (Civil Suit No. 661 of 1964) with permission to file a fresh suit on the same cause of action in accordance with the provisions contained in Clause (3) of Rule 1 of Order 23 of the Code of Civil Procedure (hereinafter ‘the Code’) and, therefore, the plaintiffs were entitled to exclude the time spent in prosecuting the said earlier suit as provided Under Section 14 of the Limitation Act, 1963 (hereinafter ‘the Act’). The question, therefore, that arises for our consideration is whether the plaintiffs-appellants were permitted to withdraw the suit in accordance with the provisions contained in Clause (3) of Order 23, Rule 1 of the Code and whether in the facts and circumstances of the present case the plaintiffs-appellants are entitled for exclusion of the time Under Section 14 of the Act. Clauses (3) of Order 23, Rule 1 of the Code contemplates that 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 the 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 subject matter of such suit or such part of the claim. In the present case all the courts below including the High Court concurrently found that the plaintiffs/appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the some subject matter. Not only this, the plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. However, the order dated 20.5.1971 passed by the learned civil court was on record which did not indicate as to what was the formal defect in the suit by reason of which the permission to withdraw the same was accorded. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiffs/appellates in accordance with the provisions of Clause (3) of Order 23, Rule 1 of the Code.
14. On perusal, by keeping in view of the decisions laid down by the Apex Court in the cases discussed above, of the Para-5 of the plaint of the Title Suit No. 7/91 which has been quoted above as well as the said order of the learned Sadar Munsiff, Guwahati dated 25.8.88 (Ext. 3), this court is of the firm view that the respondents/plaintiffs shall be precluded from filing the present Title Suit No. 7/91 in respect of the same subject matter, in as much as, earlier Title Suit No. 61/79 in respect of the same subject matter against the appellants/defendants had been withdrawn without permission to institute a fresh one. Accordingly, the substantial question of Law No. 2 formulated in the present appeal is decided in favour of the appellants/defendants.
15. For the reasons discussed above, the impugned Judgment and decree of the learned Subordinate Court is hereby set aside and quashed.
The second appeal is allowed.
