VEER BHAN Vs. MADAN GOPAL

JUDGEMENT

(1.) THIS judgment shall dispose of Civil Revision No. 23 of 1990, as well.

(2.) PLAINTIFF-RESPONDENT filed a suit in the year 1974 and the same was dismissed by the trial Court on 16 2-1979. Plaintiff respondent preferred an appeal against that order and the defendant-petitioners filed cross-objections, On 9-9-1981 plaintiff respondents on the basis of an application obtained permission of the appellate Court to withdraw the suit with permission to file a fresh suit on the same cause of auction. Statements of both the counsel for the parties and the order recorded by the District Judge, Rohtak are reproduced below:statement of plaintiff's counsel: "the suit of which this appeal has arisen suffers from formal defect I may be allowed to withdraw with liberty to bring a fresh one on the same cause of action. The appeal thus consequently renders infractuous and may kindly be dismissed as such leaving the parties to bear their own costs. " Statement of counsel opposite : "the appeal filed by the defendant-respondent readers in- frustuous and may kindly be dismissed leaving the parties to bear their own costs. " Order passed by District Jugde : "plaint of Civil suit No. 420, decided on 16-2-1979 is full of formal defects. The plaintiff is therefore, allowed to withdraw the suit with liberty to file a fresh one on the same cause of action on payment of Rs. 100/ as additional costs Civil Appeals No. 85/53 filed on 23-4-1979 and 94/13 filed on 16-4-1974 by the rival parties against the judgment and decree dated 16-2-1979 of the trial Court are rendered infrucruous and are, therefore, dismissed as such. Beth the parties shall bear their own costs of both these appeals. " 3 After withdrawal of the said suit, plaintiff respondent filed a fresh suit on the same cause of action. An application was filed by the defendant petitioners in the trial Court that the order of the appellate Court dated 9-9-1981, referred to above, was without jurisdiction as the same did not set aside the decree of the trial Court dated 16-2 1979 and therfore, permission to file a fresh suit on the same cause of action could not be granted under Rule 1 of Order 23 of the Code of Civil Procedure (hereinafter referred to as the Code') and further that judgment and decree dated 16-2-1979 passed by tie trial Court in the previous suit would operate as res judicata in the present suit Plaintiff respondent contested the application and controvrted the pleas taken by the defeadant petitioners in that application. Trial Court dismissed the application with costs and defendants have come in revision to this Court against the said order of the trial Court. 4. Learned counsel appearing for the petitioners has raised two arguments namely; (i) order of the appellate Court dated 9-9-1981 in the previous suit granting permission to withdraw the suit with liberty to file a fresh one on the same cause of action was illegal and without jurisdiction and, therefore, second suit on the same cause of action could not be filed and (ii) findings recorded by the trial Court in the earlier judgment dated 16 2-1979 in the previous suit operate as res judicata in the present suit and hence the second suit on the same cause of action was not maintainable. I find no substance in either of the submissions of the learned counsel for the petitioners. My reasons for the same are as under :taking the first plea first, the main thrust of the argument of learned counsel appearing for the petitioners is that Rule 1 of Order 23 of the Code of Civil Procedure (hereinafter referred to as the Code) applies to the suits pending before the trial Court only and the appellate Court has no jurisdiction to permit the withdrawal of the suit with permission to file a second suit on the same cause of action. He has further argued that once a decree is passed by the trial Court then certain rights come to vest in the party in whose favour the decree has been passed and as such the appellate Court has no jurisdiction to permit the withdrawal of the suit with liberty to file a fresh suit on the same cause of action. For this he has relied upon a judgment of this Court in Sulkhan Singh v. Daljit Singh and Ors. , (1988-2) 94 P. L. R 200 = 1988 (2) Rec. Rev. R. 410. 5. I have gone through the above authority carefully and I am of the view that this authority goes totally against the plea raised by the petitioners counsel. It has been specifically stated in this judgment that the Court of first appeal or even of the second appeal has power to permit not only to withdrawal of the suit but also to grant permission to the plaintiff to file a fresh suit on the same cause of action. It, of course has also been observed that ordinarily the plaintiff cannot be allowed to withdraw his suit at a belated stage and the right to withdraw the suit is not absolute but permission can always be granted in the peculiar facts of a particular case, in this case the appellate Court in the previous suit came to a finding that there were formal defects in the suit and the plaintiff was permitted to withdraw the suit with liberty to file a fresh one on the same cause of action and the said order has attained finality. No appeal or revision was preferred against the above said order of the learned District Judge and the order having attained finality cannot be permitted to be challenged by way of miscellaneous application in the subsequent suit. Defendant-petitioners could have been well advised to challenge the same in appeal or revision but the said order dated 9-9-1981 passed by the District Judge in the previous suit cannot be set aside in the present proceedings. The order of the appellate Court in the previous suit granting permission to withdraw the suit with liberty to file a fresh one on the same cause of action cannot be termed as a void order. Appellate Court had jurisdiction to pass such an order and once it is held that the said order was neither void nor without jurisdiction then it can at the most be termed as a wrong order which could only be set aside in appeal or revision. 6. The next argument of the learned counsel for the petitioners is that the appeal was dismissed by the District Judge in the previous suit and once the appeal was dismissed, Court had no jurisdiction in the matter and was. therefore, incompetent to allow the plaintiff respondent permission to bring a fresh suit in respect of the subject matter of the previous suit- For this he has relied upon a judgment of Lahore High Court in Shahu v. Mt. Rahmon, A. I. R. 1938 Lab. 52. No doubt, in that case it was held that once an appeal is dismissed then the Court has no jurisdiction to permit the plaintiff to bring a fresh suit in respect of the same subject matter but if the said judgment is analysed properly and in the context of the facts which were before their Lordships then the same is clearly distinguishable on facts and the law laid down in that authority cannot be made applicable to the facts of the present case. In the above case, learned Judges came to the conclusion that the appeal was dismissed with liberty to the plaintiff appellant to bring a fresh suit on the same subject matter without adverting to Order 23 Rule 1 of the Code nor was the order worded as to convey that it was intended by the Court to operate as an order under Order 23 Rule 1 of the Code. In these Circumstances, it was held by the Lahore High Court that the previous suit was dismissed and not permitted to be withdrawn under Order 23 Rule 1 of the Code. It was further held that there was no power with she Courts in India similar to that exercised by Courts of Equity or Common Law in England, to dismiss a suit with liberty to the plaintiff to bring a fresh suit on the same subject matter. Whatever the powers Indian Courts had for granting permission for withdrawing of the suit for filing fresh one on the same cause of action the same emanates from Order 23 Rule 1 of the Code Such power of Indian. Courts is limited to questions of form, that is formal defects etc. It was held in that case that since the order passed by the Court while permitting to bring a fresh suit on the same cause of action did not fall under Order 23 Rule 1 of the Code, the same was without jurisdiction and the appeal was deemed to have been dismissed thereby confirming the order of the trial Court and once it is held that, the appeal was dismissed then there was no power with the Court to grant permission to withdraw the suit on the same subject matter as in the previous suit. From a reading in this context, it is clear that the facts of the present case are totally different from the one which watt under discussion in Shahu's case (supra ). In the present case, the order of the District Judge specifically says that there are formal defects in the previous suit and the same was permitted to be withdrawn with liberty to file a fresh one. So, the order of the District -Judge in the previous suit clearly falls within the four corners of Order 23 Rule 1 of the Code. It cannot be held in the present case that the order of the District Judge in the previous suit did not fall within the four corners of Order 23 Rule 1 of the Code and once it is so held then the order becomes with jurisdiction where the District Judge permitted the withdrawal of the suit with permission to file a fresh suit on the same subject matter as in the previous suit which attained finality and cannot be permitted to be challenged in the present suit. 7. The next argument raised-by the learned counsel for the petitioners that a detailed judgment has been given by the trial Court in the previous suit and the findings recorded in that judgment would oprate as res judicata to the subsequent suit. I find no substance in this argument as well. Ones the case is taken on appeal it cannot be said to have been finally determined until the appellate Court has adjudicated upon the question in issue between the parties. By reason of the Court allowing the suit to be withdrawn by the plaintiff it cannot be said that trial Court's order possess that necessary degree of finality so as to operate as res judicata relative to the rights of the parties in the subsequent litigation. Moreover, when a suit is allowed to be withdrawn with leave to bring a fresh suit on the same subject matter under Order 23 Rule 3 of the Code, it should be regarded as never brought and the parties are given a right by the Court to reagitate the matter denovo on the same facts as the Court permits the withdrawal of the suit to bring a fresh suit on the same subject matter. To hold it otherwise would negate the very purpose of the provisions made by the legislature in the Code to permit the parties to withdraw the suit by the leave of the Court to bring a fresh suit on the same cause of action, it is, therefore, held that the finding recorded by the trial Court in the previous suit would not oparate as res jutidicata in the subsequent suit (present proceedings ). I also draw support to this proposition from a judgment of Calcutta High Court in Sukumar Banerjee v. Dalip Kumar Sarkar and Ors. , A. I. R. 1982 Cal. 17, with approval which reads as under : "since the plaintiff of that suit was permitted to withdraw from it with liberty to sue afresh, in the eye of law there was no existence of any such suit. Consequently, the findings arrived at in the earlier suit have no effect on the present suit. It is therefore held that there is no question of res judicata. " 8. Since I have declined the plea of the learned counsel for the petitioners regarding res judicata, their application for" amendment of the written statement to incorporate the plea of res judicata is also rejected. 9. For the reasons recorded above, this petition is dismissed with no order as to costs. Another prayer made by the learned counsel for the petitioners was that special costs of Rs. 250/- which were imposed by the trial Court while disposing of the present application made a condition precedent for further prosecution of the case in this case may be waived off Learned counsel for the respondent has no objection to this. Therefore, special costs of Rs. 250/- imposed by the Court are waived off Parties through their counsel are directed to appear before the trial Court on 10-12-1990.