ABDUL KARIM RAWTHER Vs. CHACKO

JUDGEMENT

(1.) ORDER in I. A. No. 267/03 in A. S. No. 34/95 dated 02. 02. 03 had been subjected to challenge by the petitioner in the application. He was the appellant, but is wrongly described as defendant in the judgment. Suit had been filed by the plaintiffs for a declaration of easement of rights over a 9 feet wide pathway and for mandatory injunction directing the respondents to remove the obstruction caused thereto. The defence was that there is no such pathway. It appears that, the suit had been decreed in part granting the injunction but holding that there was only entitlement of pathway of a width of 6 feet. Aggrieved by the above, an appeal had been preferred. During the pendency of the said proceedings, I. A. No. 267/2003 is seen to have been filed, purporting to the under 23 Rule 1 (3) of the Code of Civil Procedure. The request was that appellant may be permitted to withdraw the suit with liberty to institute a fresh suit in respect of the same subject matter. The reason pointed out was that the petitioners had came to know that pathway (referred to in the plaint)is in fact a village pathway and its width is more than 12 feet, and it had therefore become necessary for him to agitate over the matter afresh since the suit had been prepared, without noticing such facts.

(2.) IT is evident that the application as above had been vehemently opposed and ultimately stands rejected. The lower appellate court was of the view that if the request is allowed it may lead to a position that the contesting defendants would lose the advantage of adjudication already gained by them.

(3.) WE have to notice that this is a case where appeal had been filed by the plaintiff himself, and there was no rights reserved for defendants in the judgment and decree. According to me, this circumstance alone, eminently requires that the existence of the rights pleaded requires to be considered in a wider perspective. The facts of the case shows that what became admissible by the judgment of the learned Munsiff was the right to use a pathway, 6 feet in width. The claim for a path way 9 feet wide was not recognised. However, this could not be construed as a position where any rights were declared in favour of the defendants as is normally understood. Their stand was that there was no pathway at all. Therefore, if the plaintiff was prepared to surrender his rights already upheld by a judgment, he was entitled to withdraw the suit, the condition being that he was to convince the court about his bona fides. It is not possible to entertain an argument that, the application in effect disturbed any settled rights of the defendant. The court below while considering the application has observed that if permission is granted, it would no doubt result in the contesting respondent loosing the advantage of adjudication of the dispute, and also is likely to result in annulment of the right vested. The reason pointed out is that as at present his liability is to provide a 6 feet wide pathway alone and if a new suit is instituted, ultimately if the plaintiff establishes his claim, a 12 feet wide pathway would have to be given. That by itself is not sufficient reason to disallow an application filed under Order 23 Rule 1 (3) of the CPC. The present judgment and decree cannot be recognised as an advantage gained by the defendants as a result of the adjudication. Only a restricted right of the plaintiff is recognised. But we have to bear in mind the wholesome principle incorporated in the rule. Sub Rule (1) of Order XXIII, Rule 3 also refers to an extreme case viz that there may occur an instance where the suit must fail by reason of some patent defects.