GOPAL KRISHAN Vs. BIMLESH KUMARI

JUDGEMENT

(1.) The petitioner has applied under Section 115 of the Code of Civil Procedure, 1908 to quash the order dated 22.7.72 passed by the Senior Sub-Judge Delhi (Shri H. K.S. Malik) granting permission to the respondent (plaintiff), in appeal' to withdraw the suit with liberty to file fresh suit regarding the subject matter of the suit under Order 23 Rule 1 of the Code of Civil Procedure.

(2.) The respondent (plaintiff) had filed a suit for a permanent injunction to restrain the petitioner (defendant) from using a particular portion of the house contending that the portion was not part of the tenancy. The suit was, however, dismissed on two grounds, namely, (1) that a suit for mere injunction, without a prayer for possession, did not lie; and (2) that the plaintiff had failed to prove that the same was not part of the tenancy. As against, the said decision an appeal was preferred by the respondent, who during the hearing of the appeal conceded that either the plaint may be amended, including the prayer of possession or she be permitted to withdraw the suit with liberty to file, a fresh suit on the same cause of action with the leave of the court. The learned Senior Sub- Judge, who heard the appeal, considered that in view of the lack of a prayer for possession it is a fit case where the respondent (plaintiff) should be given permission to withdraw the suit With liberty to file a fresh suit regarding the subject matter of the suit. There was also some needless discussion regarding whether the finding of the trial Court had to be set aside the very fact of granting permission to file a fresh suit on the same cause of action after withdrawing the suit would necessarily entail the setting aside of the decree of dismissal; a direction was however given that the finding was set aside.

(3.) The first question for consideration is whether permission to withdraw the suit with liberty to file a fresh suit on the, same cause of action could be granted by the appellate court. There was no serious argument addressed to me on this question obviously on account of the position being firmly established today. In this connection it is sufficient to refer to the decision of the Full Bench of the Madras High Court in Balide Kamayya v. Pragada Papayya (A.I.R. 1918 Madras 1287) where it was held that it was open to the appellate court, in proper cases, without reversing the decree of the lower court to give to the plaintiff leave to withdraw with liberty to file a fresh suit. A previous decision to the contrary of the Madras High Court in Charagudi Chinna Katayya v. Raja Varadaraja Appa Row (A.I.R. 1914 Madras 339) was overruled. In the Full Bench case also the order of the District Judge, at the hearing of the appeal, allowing the suit to be withdrawn with liberty to file a fresh suit on the same cause of action, was construed as one setting aside the decree of dismissal. In this very process what is set aside is the decree of dismissal and not merely the findings alone. The above Madras Full Bench holds that even without any express order setting aside the decree of dismissal the mere grant of permission to withdraw the suit would tantamount to setting aside the decree of dismissal by the trial court. A division Bench of the Allahabad High Court in Ganga Ram v. Data Ram I.L.R. (1886) 8 All 82, also pointed out that in such cases the Judge's order giving permission to withdraw the suit and giving liberty to file suit obviously meant that the decree of the trial court was set aside even if' there were no express words to that effect. The "setting aside" of the findings and "remand" of the suit referred to by the learned. Senior Sub-Judge mean nothing more than that that the decree of dismissal passed by the trial court was set aside. I need hardly emphasize the need for Judicial Officers before passing an order to look into the appropriate provision of the Code of Civil Procedure and the leading case, if any, on the subject.