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PETITIONER: R.RATHINAVEL CHETTIAR AND ANR.

       Vs.

RESPONDENT: SIVARAMAN AND ORS.

DATE OF JUDGMENT:       31/03/1999

BENCH: S.Saghir Ahmad, D.P.Wadhwa

JUDGMENT:

S.SAGHIR AHMAD, J.

     V.Sivaraman  (plaintiff-respondent No.1) filed a  suit against  Shakunthala, widow of his brother, for  declaration of  title  to the suit property and for a direction  to  the defendants, namely, Shakunthala and Vinayagam, to put him in possession  of that property and to pay the arrears of  rent amounting  to  Rs.18,000/-  together   with  further   mesne profits.   The  suit was decreed by the trial court  on  5th September, 1983 against which Shakunthala filed an appeal in the High Court and during the pendency of the appeal in that Court,  the present appellants were impleaded as respondents by  order dated 20.3.1985 passed in C.M.P.  No.5008 of 1984. It  was indicated in that application that three days  after the  decree  was  passed  by   the  trial  court,  plaintiff (respondent No.1) sold the suit properties to the appellants and  since the properties in suit had been assinged to them, they had to be impleaded as respondents as required by Order 22 Rule 10 C.P.C.

     Respondent  No.1,  it  appears, filed  an  application (C.M.P.   No.15941 of 1987) in the High Court for dismissing the  suit  as not pressed as he had compromised the  dispute with  Shakunthala and wanted the compromise to be  recorded. This  application  was  allowed  by the High  Court  by  its judgment  dated  October  28, 1987 and it  is  against  this judgment that the present appeals have been filed.

     Mr.   K.  Parasaran, learned Senior Counsel  appearing for  the  appellants, has contended that the suit which  was decreed by the trial court should not have been dismissed as not  pressed  at the instance of respondent No.1 as  he  had already  transferred  the suit properties in favour  of  the appellants  who, being tranferees-pendente-lite were vitally interested  in the decree remaining intact.  It was  further contended that respondent No.1 had been held to be the owner of  the property in suit by the trial court and it was after a  declaration  was granted in his favour that the  property was  purchased by the appellants.  The dismissal of the suit as  not  pressed at the appellate stage, had the  effect  of destroying  the  decree passed in favour of respondent  No.1 and  since  the property in question, which was the  subject matter  of the suit, had already been transferred in  favour

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of the appellants, the suit could not have been dismissed as not  pressed  at  the instance of respondent  No.1  who  had ceased  to  be the owner of the property and in whose  place the  present  appellants had become the owners and were,  in that capacity, impleaded as respondents in the appeal.

     Learned  counsel  for respondent Nos.1 and 2,  on  the contrary, contended that the plaintiff (respondent No.1) had an  unfettered  right  to  have his suit  dismissed  as  not pressed.   He,  it is contended, cannot be forced by any  of the  parties to the suit, to continue to prosecute the suit. It  is also contended that under Order 23 Rule 1 of the Code of  Civil  Procedure,  respondent  No.1  had  the  right  to compromise  the  suit  with  Shakunthala  (respondent  No.2) against  whom  he had filed the suit and since  the  dispute between  respondent Nos.  1 and 2 had been amicably  settled by  a compromise, it was open to respondent No.1 to apply to the Court to dismiss the suit as not pressed.

     The  relevant  portion of Order 23 Rule 1 provides  as under:-

     "1.   Withdrawal  of  suit or abandonment of  part  of claim.- (1) At any time after the institution of a suit, the plaintiff  may  as  against  all or any  of  the  defendants abandon his suit or abandon a part of his claim:

     .......................................

     (2)  ..................................  (3) 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 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 such part of  the  claim  with liberty to institute a  fresh  suit  in respect  of the subject-matter of such suit or such part  of the claim.

     (4) ...................................

     (5)  Nothing in this rule shall be deemed to authorise the  Court to permit one of several plaintiffs to abandon  a suit  or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

     Order  23  Rule  1,  quoted  above,  provides  that  a plaintiff can withdraw a suit or abandon a part of his claim unconditionally.   It  creates  a  right in  favour  of  the plaintiff  to  withdraw  the suit, at any  time,  after  its institution.   Once the suit is withdrawn or any part of the suit  is  abandoned  against all or any of  the  defendants, unconditionally,  the plaintiff cannot bring a fresh suit on the  same  cause  of  action unless leave of  the  Court  is

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obtained as provided by Order 23 Rule 1(3)(b).

     In    other   words,   a   plaintiff   cannot    while unconditionally  abandoning  a suit or abandoning a part  of his  claim,  reserve to himself the right to bring  a  fresh suit  on  the same cause of action.  ( See:  Hulas Rai  Baij Nath  vs.  K.P.  Bass & Co., AIR 1968 SC 111 = 1967 (3)  SCR 886).

     The question in the present case is, however, a little different.   If  the suit has already been decreed  or,  for that   matter,  dismissed  and  a  decree  has  been  passed determining  the rights of the parties to the suit, which is under challenge in an appeal, can the decree be destroyed by making an application for dismissing the suit as not pressed or  unconditionally  withdrawing the suit at  the  appellate stage.   It is this question which is to be decided in  this appeal.

     Every  suit,  if  it is not  withdrawn  or  abandoned, ultimately results in a decree as defined in Section 2(2) of the  Code of Civil Procedure.  This definition, so far as it is relevant, is reproduced below:-

     "2(2).   "decree"  means the formal expression  of  an adjudication  which, so far as ragards the Court  expressing it,  conclusively determines the rights of the parties  with regard  to  all or any of the matters in controversy in  the suit  and  may be either preliminary or final.  It shall  be demmed  to  include  the  rejection  of  a  plaint  and  the determination  of any question within Section 144, but shall not include-

     (a)  any adjudication from which an appeal lies as  an appeal from an order, or

     (b) any order of dismissal for default.

     Explanation.-  A  decree is preliminary  when  further proceedings  have  to  be  taken  before  the  suit  can  be completely  disposed of.  It is final when such adjudication completely  disposes  of  the  suit.    It  may  be   partly preliminary and partly final."

     Thus  a  "decree" has to have the following  essential elements, namely,

     (i) There must have been an adjudication in a suit.

     (ii)  The adjudication must have determined the rights of  the  parties  in respect of, or any of  the  matters  in controversy.

     (iii)   Such  determination  must   be  a   conclusive determination  resulting  in  a  formal  expression  of  the adjudication.   Once the matter in controversy has  received judicial  determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant.

     What  is  essential is that the matter must have  been finally decided so that it becomes conclusive as between the parties  to the suit in respect of the subject matter of the suit  with  reference to which relief is sought.  It  is  at

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this  stage that the rights of the parties are  crystallised and unless the decree is reversed, recalled, modified or set aside,  the parties cannot be divested of their rights under the  decree.   Now, the decree can be recalled, reversed  or set  aside  either  by the Court which had passed it  as  in review,  or  by  the Appellate or Revisional  Court.   Since withdrawal of suit at the appellate stage, if allowed, would have  the  effect  of destroying or  nullifying  the  decree affecting  thereby  rights of the parties which came  to  be vested under the decree, it cannot be allowed as a matter of course  but has to be allowed rarely only when a strong case is  made  out.  It is for this reason that  the  proceedings either in appeal or in revision have to be allowed to have a full trial on merits.

     There  is a consensus of judicial opinion amongst  the High  Courts  on  the question before us.  We may  begin  by referring  to  an old decision of the Bombay High  Court  in Tukaram  Mahadu Tandel vs.  Ramchandra Mahadu Tandel & Ors., AIR  1925  Bombay  425 in which the Division Bench  of  that Court  observed  that  though as a  general  proposition,  a plaintiff  can,  at any time, withdraw a suit but where  the parties have entered into a compromise and the defendant has acquired  a right under the compromise, it would not be open to  the  plaintiff  who  had consented  to  the  compromise, afterwards to annul its effect by withdrawing the suit under Order 23 Rule 1 read with Rule 3 thereof.

     From  Bombay, we may travel to Madras and refer to the decision of that High Court in Dharma Raja vs.  K.M.  Pethur Raja  and  others,  AIR 1924 Madras 79.  In this  case,  the plaintiff  had  obtained  a decree  against  the  defendants 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 defendnats 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."

     In  Kedar  Nath  and  others vs.   Chandra  Kiran  and others,  AIR 1962 Allahabad 263, permission to withdraw  the

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suit  at the stage of second appeal was refused.  The  Court observed  that  where  the case is at the  stage  of  second appeal and the trial court has given a finding of fact which is  binding  in second appeal, the Court should not  deprive the  party  of  the  plea of res judicata  by  allowing  the plaintiff to withdraw the suit at that stage.

     This  decision was considered by the Division Bench of the  same  High Court in Vidhydhar Dube and others vs.   Har Charan  and others, AIR 1971 Allahabad 41 and was  approved. It  was held that the right of the plaintiff to withdraw the suit  at the appellate stage is not an absolute right but is subject  to  rights acquired by defendant under the  decree. It  was also observed that withdrawal may be permitted if no vested  or substantive right of any party to the  litigation is  adversely affected.  The decision of this Court in Hulas Rai  Baij  Nath vs.  K.P.  Bass & Co., AIR 1968 SC 111,  was also considered and distinguished by observing as under:-

     "In that case the Court had to consider the right of a plaintiff  to  withdraw the suit before a decree  came  into existence  and not after the decree had come into being.  It was  observed:   "It  is unnecessary for us to  express  any opinion  as to whether a Court is bound to allow  withdrawal of  the suit of a plaintiff after some vested right may have accrued  in  the  suit in favour of the defendant.   On  the facts  of  this  case,  it is clear that the  right  of  the plaintiff  to  withdraw the suit was not at all affected  by any  vested  right existing in favour of the appellant  and, consequently,  the  order  passed  by the  trial  court  was perfectly  justified." In the present case, however, a right has  become vested in the defendant after the decree in  the suit had been passed."

     Kedar Nath’s case (supra) was followed in Kanhaiya and others   vs.   Mst.   Dhaneshwari   and  another,  AIR  1973 Allahabad  212,  in  which it was again laid down  that  the plaintiff  does not have an unqualified or unfettered  right under Order 23 Rule 1(1) C.P.C.  to withdraw the suit at the appellate  stage when rights have accrued to the respondents under the decree.

     Both  these  decisions,  namely, the decision  of  the Allahabad  High  Court in Kedar Nath’s case  and  Kanhaiya’s case  were  followed  by the Andhra Pradesh  High  Court  in Thakur  Balaram  Singh vs.  K.  Achuta Rao and others,  1977 (2) A.P.L.J.  111, and it was held that though the plaintiff has  an  absolute  right  to withdraw his  suit  before  the passing  of  a decree under Order 23 Rule 1(1)  C.P.C.   but permission to withdraw the suit at the appellate stage would be  refused  if it would have the effect of  prejudicing  or depriving  any right which became vested in the  respondents or had accrued to them by reason of the findings recorded by the  trial  court.   The Allahabad  decisions,  referred  to above, were followed by the Rajasthan High Court in Ram Dhan vs.   Jagat Prasad Sethi and others, AIR 1982 Rajasthan 235, and Kasliwal, J.(as he then was) held that if the withdrawal of  the suit at the appellate stage would have the effect of destroying  the  rights which had come to be vested  in  the defendant-respondents, the suit would not be permitted to be withdrawn.   It was also held that though the plaintiff  has an  unqualified  right to withdraw the suit under  Order  23

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Rule  1(1)  C.P.C.,  he cannot be allowed to do  so  at  the appellate  stage.   It was observed that though it is  right that  the plaintiff would be precluded from bringing a fresh suit on the same subject matter, it could not be denied that the  defendant  would  not be entitled to use  the  findings given  in  such  a  suit  as  res  judicata  in   subsequent proceedings.  The same view was also expressed by the Punjab and  Haryana High Court in Sh.  Guru Maharaj Anahdpur Ashram Trust  Guna  vs.   Chander Parkash and others, 1986  (1)  89 Punjab Law Reporter 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."

     In  another Allahabad decision in Jutha Ram vs.  Purni Devi  and others, ILR 1970 (1) Allahabad 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 courts’ 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.

     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.

     The  High  Court  also  committed   an  error  in  not considering  the  impact of Rule 1-A which was  inserted  in Order  23  by the Code of Civil Procedure  (Amendment)  Act, 1976 (104 of 1976).  This Rule provides as under:-

     "1-A.   When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a  plaintiff  under  Rule 1, and a defendant applies  to  be transposed  as  a  plaintiff under Rule 10 of Order  I,  the Court  shall,  in  considering such  application,  have  due regard  to  the  question  whether   the  applicant  has   a substantial  question  to be decided as against any  of  the

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other defendants."

     The  appellants  before us, no doubt, had not  applied before  the High Court for being transposed as plaintiffs in place  of the original plaintiff who had made an application for withdrawal of suit, but it cannot be overlooked that the plaintiff  had transferred the property in suit in favour of the appellants, and, that too, after a declaration was given in  his  favour by the trial court that he was the owner  of that  property.  It was thereafter that the appellants  were impleaded  as respondents in the appeal under Order 22  Rule 10  C.P.C.   Once  the  property   was  transferred  to  the appellants  and  the  appellants   were  also  impleaded  as respondents  in the appeal before the High Court, they  were virtually in the position of the plaintiffs.  Since they had purchased   the   property  from   the  plaintiff  after   a declaration was given in his favour that he was the owner, a valuable  right  came to be vested in the  appellants  which could  not  be taken away by the plaintiff by withdrawal  of the suit unconditionally as the withdrawal was positively to have  the effect of destroying the decree already passed  in favour of the plaintiff.

     As  a  desperate bid to save the lost battle,  learned counsel for plaintiff-respondent No.  1 contended that since the  appellants  had obtained the sale-deed by fraud,  which would  not  have the effect of conveying any title to  them, they  cannot, in the matter of withdrawal of suit, intervene nor  can  they  be heard to oppose withdrawal.  We  are  not entering into the legality of the sale-deed as it is not the subject  matter of the suit under appeal.  Since  appellants had  already been impleaded as respondents in the appeal  on the  basis of that sale-deed, they have a right to be  heard in the matter of withdrawal of suit.

     For the reasons stated above, the appeals are allowed. The impugned judgment passed by the High Court is set aside, the  application for withdrawal of suit is rejected and  the appeals  are  remanded to the High Court for deciding it  on merit  in accordance with law.  The parties shall bear their own cost.