HAZARA SINGH AND OTHERS Vs. LAL SINGH

JUDGEMENT

(1.) The defendants are the appellants before this Court. The suit had been filed by the respondent for the relief of permanent injunction in relation to several items of properties. The suit had been dismissed finding that the plaintiff had not proved his possession. During the pendency of the appeal, a petition had been filed by the plaintiff-appellant for withdrawal under Order 23 Rule 1 Civil Procedure Code. The claim for withdrawal was contested on the ground that the plaintiff having suffered an adverse finding cannot seek to wipe away the same by withdrawing the suit. It would create a substantial prejudice to the defendant. This objection of the respondent was rejected by the lower Appellate Court and it had allowed the application for withdrawal of the suit and set aside the finding already recorded.

(2.) While deciding the application, the lower Appellate Court framed as a necessary point for determination that the case on grant of permission for withdrawal would have to be only considered in the context of the necessary pleadings and how the withdrawal of the suit would impact the rights on properties. The lower Appellate Court found that it was not as if all the properties were asserted by the defendants as being in their possession. On the other hand, the defendants were claiming possession only in respect of certain items and they had even admitted to the plaintiff as being alleged unauthorized possession in respect of some of the items. The dismissal of the suit cannot be understood as constituting any favourable finding for the defendants since the rights of defendants had not been dealt with by the trial Court but the plaintiff's claim alone had been rejected. The withdrawal cannot, therefore, cause any prejudice to the defendants.

(3.) This line of reasoning is challenged in the grounds of appeal by the appellants contending that a dismissal of suit must only be understood as favourable finding of the claims made by the defendants and it was a piece of wrong reasoning by the lower Appellate Court that a dismissal of the plaintiff's suit cannot be taken as favourable observation for finding in relation to the property in favour of the defendants.