CHINMOY DHAR Vs. SUDHIRRN DHAR

JUDGEMENT

(1.) Heard Mr. C.K. Sarma Baruah, learned Sr. counsel assisted by Ms. A. Dey, learned counsel for the petitioners and Mr. A.S. Choudhury, learned Sr. counsel assisted by Mr. Ali for the respondent. The order dated 6th April/02 passed by the learned Civil Judge, Sr. Division, Karimganj in Title Appeal No. 15 of 2000 is the subject matter under challenge in this Revision Petition. Petitioners herein are the plaintiffs in the related Title Suit No. 11/95 of the Court of learned Munsiff at Karimganj and the suit was for declaration of right, title of the land ejmali to the extent of 9 Annas with the defendant in the suit land and Ejmali Maliki right in the suit house to the said extent arid, also for confirmation of their joint possession thereon. The plaintiff also sought for relief for permanent injunction restraining the defendants/ respondent herein from alienating any portion of the suit properties till the same are partitioned and the identity of the suit premises is given in the Schedule of the plaint. The said Title Suit No. 11/95 was finally disposed of by the learned Civil Judge, Sr. Division No. 1 at Karimganj, thus dismissing the suit of the plaintiff under the related judgment and decree dated 6.3.00.

(2.) Being dissatisfied with the judgment and decree passed by the learned Trial Court, the present petitioners preferred an appeal being T. A. No. 15/2000 and during the pendency of the said appeal before the First Appellate Court the plaintiff/ petitioners herein filed the petition under Order 23 being petition No. 576/8 for allowing the plaintiffs to withdraw the suit that is title suit No. 11/95 which was finally disposed of by the Trial Court on its own merit. But the First Appellate Court by the impugned order dated 6th April/02 rejected the petition filed by the present petitioners and being aggrieved by the impugned order dated 6.4.02, the plaintiffs preferred this Revision petition. On behalf of the petitioners Mr. C.K. Sarma Baruah, learned counsel submitted that there is no bar in withdrawal of a suit even after the final disposal of it and also during the pendency of related appeals and the suit was dismissed, keeping in view of the fact that one Bikash Ghosh is not only a proper party but also a necessary party in the suit for adjudication of the suit. It is also contended by the learned Sr. counsel that the present plaintiffs have right to withdraw the suit which has been dismissed against him. Supporting his submission Mr. C.K. Sarma Baruah, learned counsel has drawn my attention to the decision of this Court rendered in Sri Mannalal Ram -Vs-Mustt Saira Begum and Ors. reported in (1988) 2 GLR 274 and also the decision of the Apex Court rendered in Baniram and others -Vs-Gaind and others respondent reported in AIR 1982 SC 789. According to Mr. C.K. Sarma Baruah, learned Sr. counsel there is no counter claim or set off from the end of the defendant and that the suit was dismissed keeping in view of the nonjoinder of necessary party as mentioned above, and the decree is innocuous one and no prejudice shall cause to the defendant if the prayer for withdrawal of the suit with a liberty to file a fresh suit for the same cause of action or of different cause of action is allowed and, the learned counsel has also relied upon the decision of the Apex court rendered in Hulas Rai Baij Nath, Appellant -Vs- K. Bass Company Firm reported in AIR 1968 SC 111.

(3.) At the hearing Mr. A.S. Choudhury, learned Sr. counsel submitted that the suit was decided on its own merit thus dismissing the suit of the present petitioners. The defendant/respondent herein acquired a vested right by virtue of the dismissal of the suit of the plaintiff and as such the plaintiffs cannot be allowed to withdraw the suit during the pendency of the appeal preferred by them against the order of dismissal. Now this Court is to see and examine as to whether the prayer of the plaintiffs for withdrawal of the suit at the appellate stage before the First Appellate Court with a liberty to file the suit afresh can be allowed or not, and whether the impugned order is tenable in the eye of law or not. In number of cases, the Apex Court had dealt with the matter pertaining to the withdrawal of the suit within the purview of Order 23 of the CPC. In M/s. Hulas Rai Baij Nath -Vs- K. Bass & Company reported in 1968 SC 111 so far cited and relied upon by Mr. C.K. Sarma Baruah the Apex Court held that there is no provisions in the Code of Civil Procedure which require 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 or a counter claim might have been filed. In Baniram & Ors. -Vs- Gaind (supra) the Apex Court in that judgment has not laid down any ratio with regard to the interpretation of Order 23 CPC and apart from that details facts of the case is not available in the reported case.