SEETHAI ACHI Vs. MEYYAPPA CHETTI

JUDGEMENT

(1.) This Civil Revision Petition is filed by the plaintiff in O.S. No. 56 of 1930 on the file of the Sub-Court, Devakottah, against the order passed on her petition (I.A. No. 249 of 1933) under Section 151 and Order 23, Rule 1, Civil Procedure Code, in which she reported to the Court her withdrawal from the suit as she had no longer any interest in the estate of her husband, by reason of her having adopted a son to him, and asked the Court to strike the suit off the file. That petition was dismissed by the Lower Court. The correctness of that order is challenged in this Revision Petition.

(2.) The question arising for decision in this case is of some importance and has been elaborately argued on both sides. The aforesaid suit was filed by the plaintiff who is the widow of the late Muthu Veerappa Chettiar, against two brothers of her deceased husband, vis., defendants 1 and 3, the 2nd defendant being the son of the 1 defendant, for a decree directing the defendants to render an account of the assets belonging to her estate which had been in their enjoyment from 28 January, 1924 and for the recovery of all the documents, securities, account books and other papers relating to the estate, and for the execution of such documents as would be necessary to enable the plaintiff to realise the outstandings and also for the recovery of the profits that have been derived from out of the plaintiff's funds and the delivery to her of all jewels, silverware and other valuable articles appertaining- to her estate in the possession of the defendants. Written statements were filed by the defendants and issues were also settled. One of the pleas was that the plaintiff disclaimed and renounced her interest in her husband's estate by virtue of the arrangement embodied in an award of 1928. This forms the subject of the first issue framed in the suit. The plaintiff's right to recover possession of her husband's estate from the defendants and to call on them to render accounts is the subject-matter of the third issue. During the course of the suit a compromise is said to have been entered into by way of a family arrangement, settling all the matters in controversy between the parties to the suit and one Meyyappa Chetti, the son of a deceased brother of the plaintiff's husband. The said Meyyappa Chetti intervened in the suit with I.A. No. 673 of 1931 in which he sought to be added as a party to the suit, in order to enforce the rajinama alleged to have been entered into as stated above. This rajinama, purporting to contain the terms of the settlement and to bear the marks and thumb impressions of the plaintiff and also the signatures of defendants 1 and 3 and the said Meyyappa Chetti, was put into Court along with I.A. No. 673 of 1931 and as it contained a prayer that a decree should be passed according to the terms thereof, it was numbered as I.A. No. 674 of 1931. Meyyappa Chetti who filed both these petitions in the Lower Court is the present 1 respondent, and he will be referred to as such in this judgment. Both these petitions were opposed by the plaintiff as well as defendants 1 and 3. According to the case set up by the 1 respondent, this rajinama was entered into as a family arrangement by which all the matters in controversy between the parties to the suit and himself were settled and that it was also agreed as one of the terms of the compromise that he should be made the 4 defendant in the suit, so that he may be bound by and participate in the family arrangement and compromise. The plaintiff contended that she was not really a consenting party to the compromise but was made to execute it under circumstances amounting to misrepresentation, fraud and undue influence. She further pleaded that the compromise was not a lawful one, as it contained terms opposed to public policy, whereas defendants 1 and 3 alleged that it was not a completed arrangement and was intended to take effect if some other matters in dispute between the parties were also settled by the mediators. According to the case of the 1 respondent, not only did the plaintiff and defendants 1 and 3 enter into the said rajinama with their free will and consent, but they also signified their consent to his being made the 4 defendant in the suit, by the plaintiff affixing her mark and thumb impression and defendants 1 and 3 affixing their signatures to the petition filed by him for being addled as a party (vide I.A. No. 673 of 1931). The Subordinate judge after hearing the arguments on both sides passed an order that I.A. No. 673 of 1931 should not be rejected in limine, but some evidence should be gone into in order to pass an appropriate order thereon. The plaintiff filed a Revision Petition in the High Court against that order, but it was dismissed on the ground that such a petition did not lie because no final order was passed by the Lower Court. In respect of another order passed by the Lower Court in the aforesaid petitions by way of a direction as to who should lead the evidence, the 1 defendant filed a Revision Petition in the High Court which came up before Krishnan Pandalai, J., who stated that the petition to implead Meyyappa Chettiar must be first disposed of on its own merits, in which one of the matters to be considered would be whether the parties had freely and genuinely agreed to that course. The further direction given by the learned Judge seems to be, that the question of the suit having been adjusted wholly or in part by any lawful agreement or compromise should be taken up for decision when Meyyappa Chettiar is added as a party-defendant. In accordance with these directions, the Lower Court was proceeding with the enquiry in respect of I.A. No. 673 of 1931 and some oral evidence was recorded and documents also were filed. When matters stood thus the present plaintiff filed I.A. No. 249 of 1933 on 13 February, 1933, announcing her withdrawal from the suit for the reasons mentioned therein, and stating that the suit may be struck off the file. This petition was strenuously opposed by the present 1 respondent whose grievance was, that the interests derived by him in the subject-matter of the suit by reason of the aforesaid compromise would be prejudicially affected, if by reason of the plaintiff's withdrawal at such a stage the Court should simply dismiss the suit. According to him, by reason of the plaintiff's own agreement along with defendants 1 and 3 a third share in the estate which the plaintiff surrendered in favour of defendants 1 and 3 (the immediate reversioners) is conferred on him. It is alleged that he is one who has acquired valuable rights by virtue of assignment or creation of an interest under the rajinama agreement during the pendency of the suit, and that the subsequent withdrawal of the suit by the plaintiff is only a device resorted to in collusion with defendants 1 to 3, in order to burke an enquiry in respect of the rajinama put into Court and thus prejudice his interests. The learned Subordinate Judge did not think fit to dismiss the suit itself consequent on the withdrawal application, for the reasons stated by him in his order. He held that the proper stage for considering whether the suit should be dismissed or not was after the disposal of I. As. Nos. 673 and 674 of 1931 which are pending enquiry. In this view, he dismissed the plaintiff's application, suggesting that she may renew the same if necessary after the disposal of those petitions.

(3.) The main contention pressed on behalf of the plaintiff (petitioner) is, what is set forth in ground No. 2 of this Revision Petition, viz., that the Lower Court ought to have dismissed the suit when the plaintiff withdrew from it unconditionally under Order 23, Rule 1, Civil Procedure Code and when the defendants on the record did not object to the withdrawal. The question is whether this contention should prevail, having regard to the special circumstances of this case. Sub-rule (1) of Order 23, Rule 1 gives the plaintiff the option of withdrawing from the suit or abandoning part of his claim at any time after its institution. No permission of the Court is necessary for such a withdrawal. Sub-rule (3) says that the plaintiff, who does so, 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. The aforesaid rule does not specify what the Court has to do to terminate the suit after such withdrawal. No doubt, it has to provide for the costs of the defendants by passing an appropriate order. Ordinarily, the termination of a suit is brought about either by a decree or by a dismissal. Would the mere withdrawal of the plaintiff from the suit amount to a termination thereof, without any order of the Court ? Does the Court become functus officio the moment the plaintiff announces the fact of withdrawal? Is the Court deprived of all jurisdiction over the suit for any purpose except for passing an order as to costs in the event of such withdrawal by the plaintiff? These questions have to be answered in the affirmative, if the contention put forward on behalf of the plaintiff and defendants 1 and 3 should prevail. Reliance has been placed on the decision in Ram Churn Bysack V/s. Ripsimah Harmi (1868) 10 W.R. 373. No doubt, the view taken therein is that the Court is immediately deprived of authority further to entertain the claim and should then confine itself solely to the question of costs. It seems to me that when a plaintiff so withdraws, it is not open to the defendant to resist the withdrawal and court an enquiry into the merits of the claim, if nothing else has happened which may be a bar to the dismissal of the suit. The effect of the decision in Ram Churn Bysack V/s. Ripsimah Harmi (1868) 10 W.R. 373 should not be carried too far to lead to the position that the Court is deprived of all jurisdiction over the case, so that it could not even pass an appropriate order indicating the disposal of the suit. This decision was considered by Curgenven, J. in a recent case reported in Kunju Kombi Achan V/s. Ammu . The learned Judge observes that such a view is only compatible with the position that the Court has to pass no order regarding the fact of withdrawal and the disposal of the suit by that means and is of opinion that until the Court passes such an order, it is not deprived of jurisdiction over the suit for all purposes. There is nothing in Mahant Biharidasji v. Parshotamdas (1908) I.L.R. 32 Bom. 345 to support the extreme contention put forward on behalf of the plaintiff. All that is laid down in that decision is, that the plaintiff can withdraw from the suit on his own motion and no order of the Court is necessary. Before the final order of the Court is passed after" such withdrawal, the suit cannot in my opinion be deemed to have been terminated. Kunju Kombi Achan V/s. Ammu and Rajkumari Debi V/s. Nrityakali Debi (1910) 12 C.L.J. 434 are in support of this view. In the latter case, the plaintiff who first unconditionally withdrew her suit was allowed to recall her petition for withdrawal, as no final order terminating the suit had been passed.