AMMINI KUTTY Vs. GEORGE ABRAHAM

JUDGEMENT

(1.) The controversy is about the scope of O.23 R.1. The respondent instituted OS 103/80 before the Munsiff's Court, for injunction restraining the defendants from cutting an Anjili tree; and the suit was subsequently amended to incorporate a relief for mandatory injunction also, for restoring a thodu the defendants had tampered with. The court dismissed the suit, holding that the tree belonged to the defendants, but observing that the plaintiff should have sued for declaration of title. The plaintiff preferred AS 163/82 before the District Court; and soon thereafter, apparently on the basis of legal advice, he filed another suit before the Munsiff's Court OS 352/82 for declaration of title to the property, the tree and also for damages. IA 719/83 was then moved in AS 163 for permission to withdraw OS 108/80, under O.23 R.1, and the learned District Judge granted the permission. This revision challenges the said grant.

(2.) Mr. O. V. Radhakrishnan appearing for the defendants contends that O.23 R.1 permits only withdrawal of suits pending in the Trial Court, and that once the suit is disposed of by that court and an appeal preferred, the appellate court cannot permit withdrawal of the suit itself. Some decisions are cited; but it seems to me that apart from the provisions of S.107(2) of the Code and the direction given by the Privy Council in the last paragraph of the decision reported in Ravaneswar v. Baijnath Ram ( AIR 1915 PC 24 ) there is enough other authority also to support the view taken by the District Court that an appeal is a continuation of the suit and that the appellate court is also competent to grant permission (see Note 11 to O.23 R.1 AIR Commentaries, 9th Edition Vol. IV).

(3.) It is then contended that in as much as the dismissal of OS 103/80 had conferred on the defendants a "vested right" to raise a plea of res judicata in any subsequent suit, as regards title, the deprival of that right by the order in the T.A. was totally impermissible. There are at least two answers to this contention. The first is that the suit was for injunction, and consequently, the observations of the Trial Court on title were insufficient to operate as res judicata. The other is that even assuming that there could be such vested rights, all such rights can only be subject to the provisions of the statute. O.23 R.1 does not stipulate that the power thereunder cannot be used for destroying vested rights. The most that could therefore be suggested is that while exercising its discretion under the rule, the court should take into account all relevant circumstances and act in a judicial manner. To place fetters on the court's power, which are not there in the statute, will be to add to the statute and not to interpret it.