DINABANDHU SAHOO Vs. BUDHI DEBI

JUDGEMENT

(1.) Can an appellant withdraw the suit, when the appeal is pending, is the ultimate question that falls for consideration. This appeal is directed against the judgment and decree of dismissal passed by the learned Subordinate Judge, Puri, dismissing the suit for declaration of title of the plaintiff-appellant in respect of the suit property, instituted on the allegations that the suit properties were purchased benami in the name of defendant-respondent Budhi Debi, by the plaintiff-appellant. The challenge of the said defendant-respondent was that the suit property has been acquired by utilisation of her own funds, without any aid from the plaintiff-appellant. The suit had been dismissed on the finding that the plaintiff-appellant had failed to discharge the onus of proving benami acquisition.

(2.) The defendant-respondent Budhi Debi died on 29-4-1985. A memorandum was filed by the appellant that he being the sole heir of the deceased, by application of Section 15 of the Hindu Succession Act, he had inherited whatever interest the deceased respondent had, even without entering into any controversy whether the findings of the trial court were correct. One Narasingh Parida filed an application to be impleaded as a party-respondent under Order 22, Rule 10(1), Code of Civil Procedure, 1908 (in short 'the Code') claiming that the property in question had been willed in his favour by a registered will dated 11 -12-1975. After considering the objections filed, the application was allowed and a subsequent application filed by the plaintiff-appellant to recall the order was dismissed. During the hearing of the appeal, a petition has been filed by the plaintiff-appellant seeking permission to withdraw the suit challenged in this appeal. A counter affidavit on behalf of impleaded Narasingh Parida has been filed, stating that the prayer is impermissible. Another application has been filed to declare the said Narasingh Parida as major and permit him to contest the appeal in person. In view of the respective contestions, it is to be seen whether the prayer of the appellant to withdraw the, suit out of which this appeal arises is maintainable.

(3.) It is submitted on behalf of the appellant that the right to withdraw a suit is an unqualified right, where permission of a Court to file a fresh suit is not asked for. This has been rebutted with the submission that when the withdrawal is likely to cause prejudice to the defendant, the permission can be refused. It is contended on behalf of impleaded Narasingh Parida that the intention of the appellant is to wipe out the effect of result of the suit and the evidence recorded therein. It is submitted that a valuable right has accrued in his favour and he has been put to great expenses for fighting this litigation. Reliance has been placed on a decision of the Allahabad High Court reported in AIR 1971 Allahabad 41 : (1970 All LJ 732) (Vidyadhar Dube v. Harcharan), to additionally contend that withdrawal cannot be granted at the appellate stage. On behalf of the appellant it has been submitted that the powers of withdrawal under Order 23, rule 1 are equally applicable at the appellate stage. The impleaded party was not a party in the suit and therefore, the question of his having been vested with any right does not arise. The controversy raised is interesting. Two types of situations are envisaged in sub-rule (1) and sub-rule (3) of Order 23. In the former case, at any time after institutions of the suit the plaintiff may abanden his suit or part of his claim. In the latter case, permission is needed to institute a fresh suit in respect of the subject-matter for which the abandonment in full or part is made, Sub-rule (4) makes it clear that where the plaintiff abandons a suit or part of a claim under sub-rule (1), or withdraws a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. It is significant to mention here that the heading of Order 23 is "Withdrawal and Adjustment of Suits". Rule 1 is also described as relating to " Withdrawal of suit or abandonment of part of claim." Even though rule 1 has been substituted for the old Rule 1, the new sub-rule (1 ) of rule 1 is substantially identical with the old sub-rule (1), the only difference being that in place of the words "withdrawn his suit", the words "abandons his suit" have been substituted. Sub-rule (1) gives an unqualified right to the plaintiff to abandon his suit and if no permission to file a fresh suit is sought under sub-rule (2) of rule 1, the plaintiff becomes liable for such posts as the Court may award, and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-rule (3) of that rule. The Rule enacted in Order 23, rule 1 is a statutory recognition of a legal principle permitting withdrawal or abandonment of a suit or part of a claim, and barring institution of a claim abandoned in a previous suit, unless certain conditions are fulfilled, including permission of the Court to institute a fresh suit. The language of Order 23, Rule 1, sub-rule (1), gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under sub-rule (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 3, or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.