IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.703 of 2003 and C.M.P.No.483 of 2010 1. Jayarama Kounder (died) 2. Dhananyaja Kounder 3. Kamalammal .. Appellants Recorded 2nd appellant as L.R. and 3rd appellant brought on record as L.R. of the deceased 1st appellant vide order of Court dated 11.03.2010 made in CMP No.440 of 2010. vs. 1. Ganesan 2. Radha 3. Selvam 4. Namadeva Gounder 5. N.Mohan 6. Abirami 7. Vimala 8. Vijaya 9. Sarala 10.Kumari .. Respondents R5 impleaded vide order of the Court dated 27.12.2004 made in CMP 13917 of 2004. R6 to R10 impleaded vide order of the Court dated 01.03.2005 made in CMP 1891 of 2005. This second appeal is focussed as against the judgment and decree in A.S.No.47 of 2002 on the file of the learned Principal District Judge, Villupuram dated 31.12.2002 confirming the judgment and decree dated 24.08.2001 made in O.S.No.524 of 1995 on the file of the Additional District Munsif, Villupuram. For Appellant : Mr.R.Loganathan For Respondents : Mr.R.Subramanian, (for R1 to R3 and R5 to R10) J U D G M E N T
This second appeal is focussed by the original plaintiffs animadverting upon the judgement and decree dated 31.12.2002 passed in A.S.No.47 of 2002 by the learned Principal District Judge, Villupuram confirming the judgment and decree of the learned Additional District Munsif, Villupuram in O.S.No.524 of 1995. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. The appellants/plaintiffs filed the suit seeking declaration of title and permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property.
(b) The defendants filed the written statement resisting the suit.
(c) Whereupon issues were framed by the trial Court.
(d) On the side of the plaintiffs, P.W.1 to P.W.7 were examined and Exs.A1 to A14 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B1 to B13 were marked.
(e) Ultimately the trial Court dismissed the suit, as against which appeal was filed for nothing but to be dismissed confirming the judgment and decree of the trial Court.
3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds.
4. My learned Predecessor framed the following substantial questions of law:
“(1) Had the plaintiffs not succeeded their title through Exs.A1, A2, A5 and on their position of descendants to Narayana Goundar, who was the original owner, being the existing male descendant entitled to succeed the ancestral properties?
(2) The defence of the defendants as to title and possession through D3 as cultivating tenant of the extent of 0.12 cents which in fact not cultivable and never under cultivation and has no means of irrigation and also no entry as to the tenancy rights?
(3) Had we place consideration of genealogical background, there was no occasion to attempt succession over the property in any other manner as their property is no way connected to the succession of plaintiffs?
(4) Had the position of title and possession established, is not the small discrepancies, may not have magnified to the extent of refusing relief?
(5) Had the possession has been established through deposition of P.W.1 to P.W.7, are the courts below are justfied in denying the relief as prayed for?
(extracted as such)
5. Heard both sides.
6. In the meanwhile during the pendency of the Second Appeal, CMP No.483 of 2010 has been filed seeking permission to grant leave by making the following prayer:
“To grant leave to withdraw the suit based on which the present Second Appeal has arisen on the same cause of action in future in the event of the appellants or their successors face any interference from any quarters.”
7. However, the respondents resisted the petition by stating that after losing the case before the trial Court as well as the first appellate Court, the petitioners/appellants herein would not be justified in simply seeking permission of this Court to withdraw the suit with liberty to file a fresh suit with the same cause of action.
8. Whereas, the learned counsel for the appellants would submit that after the dismissal of the case by the first appellate Court, there was a compromise arrived at between the parties and hence, there is no necessity for him to prosecute the Second Appeal. However, the learned counsel for the appellants would pray for permission of this Court to grant leave so as to file a fresh suit on the same cause of action.
9. I am of the considered view that antithetical pleas cannot be raised by the petitioners/appellants. There is nothing before this Court to demonstrate that the matter was compromised. In one breath the learned counsel would say that the matter was settled out of Court and in another breath he wants the suit to be withdrawn with liberty to file a fresh suit on the same cause of action.
10. At this juncture, I recollect the decision of the Hon’ble Apex Court reported in 1999(II) CTC 593 [R.Rathinavel Chettiar and another v. V.Sivaraman and others], certain excerpts from it would run thus:
“14. From Bombay, we may travel to Madras and refer to the decision of that High Court in Dharma Raja v. K.M.Pethur Raja, AIR 1924 Mad. 79: ILR 46 Mad 811. In this case, the plaintiff had obtained a decree against the defendant against which only one of the defendants had filed an appeal while the rest of them did not challenge that decree. At the appellate stage, the plaintiff-respondent wanted to withdraw the suit against the appealing defendant so that the decree which had already been passed against other defendants who had not appealed, may be enjoyed by him. The High Court while rejecting the application of the plaintiff for withdrawal under Order 23, Rule 1, C.P.C. observed as under:-
“The provision of law relied on by the plaintiffs-respondents in O.23 R.1 of the Code of Civil Procedure, which provides for the withdrawal of a suit by a plaintiff and abandonment of part of his claim. Thus the rule gives as a matter of right and it is not disputed that a similar privilege is inherent in an appellant as regards his appeal; but we have not been referred to any ruling or provision of law which would extend this privilege to a plaintiff-respondent nor can we see any reason why, when the litigation has reached the stage of an appeal, the respondent should be allowed the right to defeat the appeal and prevent its being heard by the simple process of withdrawing his suit as against the appellant. It may of course be argued that, although this is not a right of the appellant, nevertheless it is in the discretion of the Court to allow him to do so but that will depend on considerations which, we think, have not been appreciated by the lower appellate Court.”
20. The same view was also expressed by the Punjab and Haryana High Court in Sh. Guru Maharaj Anandpur Ashram Trust, v. Chander Parkash, 1986 (1) 89 PLR 319. The Court observed:-
“Once the decree is passed by the trial Court, certain rights are vested in the party in whose favour the suit is decided. Thus, the plaintiff is not entitled to withdraw the suit as a matter of course at any time after the decree is passed by the trial Court. In these circumstances, the lower appellate Court has acted illegally by allowing the plaintiffs to withdraw the suit after setting aside the judgment and decree of the trial Court dismissing the suit.”
21. In another Allahabad decision in Jutha Ram v. Purni Devi, ILR 1970 (1) All. 472, the plaintiff compromised the suit with certain defendants at the appellate stage and gave an application to withdraw the suit against those defendant-respondents. The Court refused permission to withdraw the suit as the withdrawal would have the effect of depriving the other respondents of the benefit of the lower court’s adjudication in their favour. This decision, incidentally, applies squarely to the facts of the present case as in this case also the plaintiff compromised with one of the respondents and gave an application for withdrawal of suit. Obviously, the intention was to deprive the appellants of the benefit which had accrued to them on account of a declaratory decree having been passed in favour of the plaintiff who incidentally was their predecessor-in-interest.
22. In view of the above discussion, it comes out that where a decree passed by the trial Court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in parties to the suit under the decree cannot be taken away by withdrawal of suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody’s vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained.”
A mere perusal of the said decision would highlight and spotlight the fact that under Order 23 Rule 1 of CPC, leave/ permission cannot be granted as a matter of course, unless valid grounds are found set out in the affidavit accompanying the petition and only if those grounds are true, then that must actually be capable of cutting at the root of the filing of the case due to some legal technical defect. But in this case no such ground is found set out. The petitioners/appellants would submit that there was compromise after the judgment of the first appellate Court and in such a case, I am of the view that no permission could be granted in favour of the petitioners/appellants to file a fresh suit on the same cause of action and accordingly, the CMP No.483 of 2010 is dismissed. However, I would like to observe that the appellants as per law are always at liberty to file a fresh suit based on the subsequent arisal of cause of action, if any, subject to law of limitation. Accordingly, this Second Appeal is dismissed.
Gms
To
1. The Principal District Judge, Villupuram.
2. The Additional District Munsif,
Villupuram