DURGA PRASAD Vs. LAXMINARAYAN RAM GOPAL

JUDGEMENT

(1.) THIS is plaintiffs appeal in an eviction suit. The appeal was admitted for final hearing on the following substantial question of law :-Have both the Courts below erred in not allowing withdrawal of the suit on application under Order 23, Rule 1 (3) of the Code of Civil Procedure when actually cause of action arises month to month in a case between the landlord and tenant for eviction?

(2.) FACTS which are relevant for the disposal of the appeal are as under. Undisputedly, this is second round of litigation between the landlord and the tenant. The suit accommodation is a room let out to the appellant on payment of monthly rent of Rs. 20/ -. The respondent had filed a suit for eviction of the appellant somewhere in the year 1964 and it was registered as Civil Suit No. 98a/1964. The eviction was sought besides other grounds on the ground covered under section 12 (1) (f) of the M. P. Accommodation Control Act, 1961 (hereafter referred to as 'the Act' ). In second appeal, this Court had held that the accommodation was let out for residential purposes, therefore, a decree under section 12 (1) (f) of the Act granted by the Courts below was set aside. Thereafter, a second suit was filed claiming eviction of the appellant under section 12 (1) (e)of the Act. The suit was contested by the appellant by denying all material allegations of act. On the basis of the pleadings, learned trial Judge framed issues and allowed parties to adduce evidence. Learned trial Judge after hearing final arguments had posted the case for pronouncement of judgment on 31-3-2001. On 30-3-2001 the application under Order 23, Rule 1 (3) of the Civil Procedure Code was submitted on behalf of the plaintiffs seeking permission of the Court to withdraw the suit with a liberty to file a fresh suit. Learned trial Judge considered the application and by a separate order dismissed the same on 31-3-2001 and proceeded to pronounce the judgment in favour of the respondent. The matter was carried in appeal by the appellant, however, without avail. Hence, this second appeal at the instance of the tenant as pointed out hereinabove.

(3.) LEARNED counsel for the appellant submitted that in absence of any fraud, collusion or coercion, the trial Court had no option but to allow the application and it could not have proceeded with the suit. In support of this contention, learned counsel has relied upon the decision of the Allahabad High Court reported in AIR 1966 Allahabad 318, Smt. Raisa Sultana Begam and others vs. Abdul Qadir and others and the decision of the Punjab and Haryana High Court reported in AIR 1984 P and H 220, Manmohan Singh Bedi and other vs. Smt. Santosh Kumari and others. Per contra, learned senior counsel, appearing for the respondent has placed reliance on a decision of the Supreme Court reported in AIR 2000 SC 2132, K. S. Bhoopathy and others vs. Kokila and others and a Division Bench decision of this Court reported in 1962 MPLJ 596, Shantilal Bardichand Mahajan (Defendant) vs. Champalal Radhaji and others (Plaintiffs ). Learned senior counsel submitted that the question of law framed at the time of admission is, in fact, not a substantial question of law as has been held by the Supreme Court in santosh Hajari vs. Purushottam Tiwari, reported in AIR 2001 SC 965.