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CASE NO.: Appeal (civil)  5107 of 2000

PETITIONER: Kandapazha Nadar & Ors

RESPONDENT: Chitraganiammal & Ors

DATE OF JUDGMENT: 16/04/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

       Challenge in this Appeal is to the judgment rendered by a  learned Single Judge of the Madras High Court allowing the  second appeal filed by the respondents under Section 100 of  the Code of Civil Procedure, 1908 (in short the ’Code’).   Respondents are the legal representatives of the original  plaintiff.

        According to the plaintiff, the suit properties originally  belonged to one Chelliah Nadar, he had purchased the suit  properties under sale deed Ex.A1 dated 26.2.1973,  the  defendants 1 to 3  fraudulently created a conveyance deed in  their favour  the defendants had earlier instituted O.S. No. 298  of 1973 on the file of the District Munsif Court, Srivaikuntam,  the defendants obtained orders of injunction and managed to  enter into the suit properties;  the defendants have no right  whatsoever,  the suit 0. S. No. 298 of 1973 was dismissed after  contest, in appeal , the first appellate Court decreed the suit in  favour of the plaintiffs in the said suit , present  plaintiff  preferred Second Appeal , No. 8 of 1977,  pending the said  Second Appeal, said suit was permitted to be withdrawn i.e.   suit 0.S. No.298 of 1973 but without liberty to file a fresh suit  on the same cause of action,  the defendants have no right in  the suit property and  the defendants who have no right are in  enjoyment of the suit properties since 11.6:1973.

It was the further case of the plaintiffs that the  defendants have cut and carried away the Odai trees worth  Rs.1500/-  the defendants have been tapping toddy from 42  palmyra trees since 1973 standing on the suit properties; the  defendants have also cut and carried away two palmyra trees  worth Rs. 200/-,  the defendants have been cultivating ground  nut and derived income of Rs. 1000/- ,  the palmyra trees  would fetch an income of Rs. 400/- per annum; the  defendants 1 and 3 are liable to pay Rs. 5100/- towards past  mense profits and  the plaintiffs are entitled for recovery of  possession besides past and future mense profits from the  defendants.

The defendants 1 and 3 filed a written statement inter  alia pleading that the suit properties originally belonged to  Chelliah Naoar and his brother; the defendants have  purchased the properties from Chelliah Nadar on 8.10.1971,  

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the plaintiff herein attempted to interfere with the defendants’  possession, the plaintiff had not purchased the suit property  from Chelliah Nadar, on the dismissal of the said suit the  defendants herein preferred A.S.No.51 of 1975 which was  allowed and decreed;  the Second Appeal preferred by the  plaintiff herein was pending,  pending the Second Appeal , the  defendants herein withdrew the suit itself as they have not  proved execution of the sale deed by Chelliah Nadar,  the  plaintiff has no right to institute this suit,  the plaintiff is not  entitled to the suit property,  the plaintiff is not entitled to any  income or value of the trees or income from palmyra trees and  that the suit is liable to be dismissed.

After contest, the trial Court held that the plaintiff in the  present suit is entitled to the suit property and the plaintiff is  entitled to recover possession,  the defendants 1 and 3 are  liable to pay Rs. 2,760/- towards past mense profits and the  plaintiff is entitled to future mense profits to be ascertained  under Order 20 Rule 12 of the Code.

       The first appellate court held that the defendant Nos. 4 to  5 have not been impleaded as parties to the first appeal.   According to the plaintiff he had purchased the suit property  from  Chelliah Nadar under Exhibit A1 on 26.2.1973.  The  contesting defendants also purchased the suit property from  brothers of Chelliah Nadan under Exhibit B-7 on 8.10.1971  and claimed to be in possession of the property.   In the earlier  suit O.S. No. 298 of 1973 the orders passed have great  relevance and reads as follows :

       "After some lengthy arguments, Mr. K.  Sarvabhauman learned counsel for the  respondents prayed for leave to withdraw the  suit.  Mr. Ganapathi Subramaniam, learned  counsel for the appellant states that leave  could be granted provided he is not given  liberty to file a fresh suit.  Recording the  statement  I  grant leave to withdraw the suit  making it clear that the plaintiffs-Respondents  will have no liberty to file a fresh suit.   Accordingly the suit will stand dismissed.  No  costs."

 The High Court observed that in terms of Order XXIII  Rule 1 (4)(b) when  a party to the suit withdraws the suit  without permission to institute fresh suit, the parties shall be  precluded from instituting the fresh suit in respect of such  subject matter or such part of the claim.  The High Court  observed that the earlier suit was dismissed as the defendant  had withdrawn the earlier suit at the second appellate stage  without securing necessary permission to institute a fresh  suit.  The High Court therefore, held that the general  principles of res judicata get attracted and the defendant’s  claim is barred in view of the orders passed in the earlier suit  between the same parties.  It is to be noted that the first  appellate court had observed that the withdrawal debarred the  plaintiffs from filing a subsequent suit but it did not affect the  defence of the defendants.

       Learned counsel for the appellants has referred to several  decisions to contend that fresh suit is not barred and Order  XXIII Rule 1 (4) has no application to the facts of the cases.   There is no appearance on behalf of the respondent in spite of  notice.

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       In order to appreciate contention of learned counsel for  the appellant, it would be appropriate to quote Order XXIII,  Rule 1(4) the same read as follows:

       "1 (4)Where the plaintiff \026 (a)     abandons 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."

It would also be relevant to take note of Order IX Rule 9  and Order XXII Rule 10 of the Code which read as follows:

"Order IX, Rule 9 \026 Decree against plaintiff by  default bars fresh suit \026 (1) Where a suit is  wholly or partly dismissed under rule 8, the  plaintiff shall be precluded from bringing a  fresh suit in respect of the same cause of  action.  But he may apply for an order to set  the dismissal aside, and if he satisfies the  Court that there was sufficient cause for his  non-appearance when the suit was called on  for hearing, the Court shall make an order  setting aside the dismissal upon such terms as  to costs or otherwise as it thinks fit, and shall  appoint a day for proceeding with the suit."

Order XXII Rule 10 \026 (1) Procedure in case of  assignment before final order in suit \026 (1) In  other cases of an assignment, creation or  devolution of any interest during the pendency  of a suit, the suit may, by leave of the Court,  be continued by or against the person to or  upon whom such interest has come or  developed.

(2) The attachment of a decree pending an  appeal therefrom shall be deemed to be an  interest entitling the person who procured  such attachment to the benefit of sub-rule(1)."

The original suit was one for declaration of title and  injunction. Undisputedly the withdrawal was permitted but no  liberty to file fresh suit was granted. The purpose of  incorporating of Order XXIII Rule 1 is to avoid multiplicity of  litigation.  In the earlier suit the respondent-defendant  claimed to be the owner.  The provisions contained in Order IX  Rule 9 Order XXII Rule 10 relate to different concepts.  It is  the subject matter which is the relevant aspect. Plaintiff has to  prove his case. Order II Rule 2 also is relevant, the same reads  as follows:

"Order II Rule 2" Suit to include the whole  claim: (1) Every suit shall include the whole of  the claim which the plaintiff is entitled to make  in respect of the cause of action; but a plaintiff  may relinquish any portion of his claim in  order to bring the suit within the jurisdiction  of any Court.

(2) Relinquishment of part of claim- where a  plaintiff omits to sue in respect of, or

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intentionally relinquishes, any portion of his  claim, he shall not afterwards sue in respect of  one portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs  \026 A person entitled to more than one relief in  respect of the same cause of action may sue  for all or any of such reliefs; but if he omits,  except with the leave of the Court, to sue for  all such reliefs, he shall not afterwards sue for  any relief so omitted."

Order II Rule 2 relates to the "relief which can be  granted" while Order XXIII Rule 1 refers to the "subject  matter".  The grant of leave is not a matter of a right.  Different  subject matters are relatable to provisions contained in Order  XXIII Rule 1.  In both the present and the earlier suit the  subject matter is essentially the same.

By the impugned judgment it has been held that since  the petitioners herein had withdrawn Suit No.298 of 1973 and  since no liberty was given to the petitioners to institute a fresh  suit, the petitioners were precluded from raising the plea in  defence that sale deed executed by Chelliah Nadar in favour of  Thangaraj Nadar dated 26.2.1973 was not true and valid.  In  this connection, the Madras High Court placed reliance on  Order XXIII Rule 1(4) of Code.   

The question before us is : what is the effect of order  passed by the High Court in Second Appeal No.8 of 1977 filed  by Thangaraj Nadar, in the first round of litigation.  That order  is dated 27.7.78.  Under that order, the Madras High Court  granted leave to withdraw the suit filed by the petitioners  herein bearing Suit No.298 of 1973, making it clear that the  petitioners herein (plaintiffs in earlier suit) were not given  liberty to file a fresh suit.  Does it mean that petitioners- defendants were estopped from raising the defence regarding  validity of the conveyance in their favour by Chelliah Nadar  dated 8.10.71.

       In the case of (Rani) Kulandai Pandichi and another v.  Indran Ramaswami Pandia Thevan  (AIR 1928 Madras 416), it  has been held as follows:          "Permission to withdraw a suit decides no  matters in controversy and does not confer any  rights on a party and the fact that the person  withdrawing is precluded from bringing a fresh  suit on the same cause of action cannot be  said to have that effect.  It has been held that  an order permitting the withdrawal of a suit or  appeal is not a decree within the meaning of  the Civil Procedure Code.  We need only refer  to Patlogi v. Gam \026 [1891] 15 Bom. 370,  Jogodindra Nath v. Sarat Sundari Debi -  [1891] 18 Cal. 322 and Abdul Hussain v. Kasi  Sabu - [1900] 27 Cal. 362"                                                 (emphasis supplied)

       In the case of Saraswati Bala Samanta and others v.  Surabala Dassi and others  (AIR 1957 Calcutta 57), it has  been held vide para 3 as follows:

       "(3)  The order recording the withdrawal

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of the suit is not a decree.  There was no  question therefore, of drawing the order as a  decree.  The order recording the withdrawal  can however be formally drawn up under  R.187 Part I, Chapter 1 of the Civil Rules and  Orders, Vol.1, inasmuch as the order directed  payment of costs by the plaintiff to the  defendant.  We, therefore, treat the so called  decree as an order."                                                 (emphasis supplied)          In the case of Devassi v. Anthoni  (AIR 1969 Kerala 78), it  has been held vide para 1 as follows: "(1). None of the conditions in Sub-section (1)  of Section 100 of the Code is here satisfied. Indeed,  the dismissal of the appellant defendant’s appeal  to the court below can be supported on the short  ground that that appeal did not lie. This is a case  where the plaintiff withdrew his suit under Sub- rule (1) of Rule 1 of Order XXIII -- he was  competent to do that and required nobody’s  permission since he was the sole plaintiff, the  defendant, as we shall presently see being in no  sense a plaintiff -- and the so-called dismissal of  the suit as withdrawn by the trial Court was not  really a dismissal but a mere recording of the fact  of withdrawal. It determined none of the matters in  controversy in the suit -- there was no claim by the  defendant to be determined -- and is not a decree  as defined by Section 2 (2) of the Code. It stands  on the same footing as a dismissal under Rule 8 of  Order IX which, because the word, "dismissal"  implying a determination on the merits is used by  the Rule, is expressly excluded from the definition  in Section 2 (2) by Clause (b) of the exclusions  therein. It is the provision in Sub-rule (3) of Rule 1  of Order XXIII (like that in Rule 9 of Order IX) and  not any principle of res judicata that precludes the  plaintiff in such a case from bringing a fresh suit  in respect of the same matter. It follows that there  being no decree no appeal lay under Section 96 of  the Code. Reference may be made in this  connection to Kulandai v. Ramaswami, AIR 1928  Mad 416 at p. 418, Saraswati Bala v. Surabala  Dassi, AIR 1957 Cal 57 and Raisa Sultana Begam  v. Abdul Qadir, AIR 1966 All 318 at p. 320."     

(emphasis supplied)

       In the case of Nathji and another v. Languria and  another (AIR 1925 Allahabad 272), it has been held that where  in the case of an application to withdraw a suit in terms of  Order 23 Rule 1(2) C.P.C., the Court allows the suit to be  withdrawn but refuses permission to bring a fresh suit, the  court’s order is erroneous.  It was held that if the trial court  saw no reason for allowing the withdrawal in terms of Order  23 Rule 1(2), the trial court should have refused the  application seeking liberty to file a new suit and it should have  proceeded with the suit on merits.    

In view of the above judgments, the position in law is  clear that when the court allows the suit to be withdrawn  without liberty to file a fresh suit, without any adjudication,  such order allowing withdrawal cannot constitute a decree and  it cannot debar the petitioners herein from taking the defence

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in the second round of litigation as held in the impugned  judgment.  The above judgments indicate that if the plaintiff  withdraws the suit, the order of the court allowing such  withdrawal does not constitute a decree under Section 2(2) of  Code.  That in any event, it will not preclude the petitioners  herein (defendants in second round) from raising the plea that  the sale deed executed by Chelliah Nadar on 26.2.73 in favour  of Thangaraj Nadar was not true and valid.  Thus, the civil  appeal needs to be allowed.