AKIMANNESSA BIBI Vs. BEPIN BEHARI MITTER

JUDGEMENT

(1.) This is an appeal in a suit for recovery of possession of land on declaration of title. The Trial Court decreed the suit in part. The defendants have appealed against the decree in so far as it is adverse to them. The plaintiff has neither preferred a cross-appeal nor presented a memorandum of cross-objections. On a previous occasion, a Division Bench of this Court directed a local investigation. That investigation has now been made and the appeal is before us for final disposal. After the arguments on behalf of the appellants had been concluded and while the arguments on behalf of the respondent were in progress, an application was made to us on behalf of the plaintiff for leave to withdraw from the suit with liberty to bring a fresh suit upon the same cause of action. This application has been opposed by the appellants on two grounds, namely, first, that as a portion only of the subject-matter of the controversy is before us, it is not competent to this Court to allow the plaintiff to withdraw from the entire suit with liberty to bring a fresh suit upon the same cause of action; and secondly, that the circumstances do not justify the grant of the prayer of the plaintiff.

(2.) As regards the first objection, it is plain that Rule 33 of Order XLI of the Code entitles us to allow the plaintiff to withdraw from the entire suit with liberty to bring a fresh suit, although the plaintiff has not preferred an appeal against the decision of the Court below. Rule 33 authorises the Appellate Court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require; and the rule explicitly states that this power may be exercised by the Court, notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The latter part of the rule is expressed in very comprehensive language, and unquestionably covers a case of the description now before us. We are not unmindful that, as has been repeatedly observed, for instance, in the cases of Rangamlal v. Jhandu 11 Ind. Cas. 640; 34 A. 32; 8 A.L.J. 111; Ganga Dhar Muradi v. Banabashi 24 Ind. Cas. 208; 22 C.L.J. 390, Abjal Majhi v. Intu Bepari 32 Ind Cas. 494; 22 C.L.J. 39 and Ananga Mohun v. Bijoy Chandra 32 Ind. Cas 49; 22 C.L.J. 39, this power must be cautiously exercised and should not be permitted to be invoked in favour of a litigant so as to enable him to evade the provisions of other Statutes, e.g., the Limitation Act and the Court Fees, Act. To take one illustration, where the plaintiff has obtained a decree for a portion of his claim and has appealed for relief in respect of the, remainder, the defendant, who has not taken the statutory steps to assail the decree in so far as it is adverse to him, should not be allowed to contend that not only the appeal by the plaintiff but the entire suit should be dismissed. It is not necessary, however, to apply that doctrine to the case before us. Here, the plaintiff does not ask for a relief which has been denied to him by the Court below; he seeks merely to be relieved from the position of embarrassment in which he has been placed by the decree of the primary Court. In our opinion, Rule 33 of Order XL[ may justly be applied to the case before us. We are thus brought to a consideration of the second objection, namely, that in the circumstances of the present case, the plaintiff should not be allowed to withdraw from the entire suit with liberty reserved to institute a fresh suit upon the same cause of action. An examination of the protracted proceedings in this litigation has convinced us that the plaint is open to objection and that the mode of trial in the Court below has not been conducive to a correct determination of the real controversy between the parties. It was for this reason that this Court was constrained on the last occasion to direct a local investigation. The result of that investigation has been placed before us; we need only say that it is by no means satisfactory, and that if the appeal were heard on the merits to its final stage, possibly a further investigation might be necessary. In these circumstances, we feel no doubt that the plaintiff should be allowed to withdraw from the suit. But we are not prepared to allow the plaintiff liberty to bring a fresh suit in respect of the portion which has been decided against him by the Court below. The defendants frankly conceded that they were anxious to retain the judgment in respect of the portion which has been decided in their favour, not merely because they have got a favourable decree but also because they might use it against the plaintiff in another litigation not now before us. We are of opinion that this is a consideration which should not weigh with as in determining whether the plaintiff should be allowed to withdraw from the suit. We, therefore, allow the plaintiff to withdraw from this suit with liberty to bring, subject of course to the law of limitation, a fresh suit in respect of the same cause of action, only with regard to the lands which have been decreed in his favour by the Subordinate Judge; but such liberty is not reserved to him with respect to that portion of his claim which has been decided adversely to him. This order is made on the condition that the costs in the Court below, namely, Rs. 413-11 and the costs subsequent to the decree, namely, the costs of the local investigation, i.e., Rs. 48, and the costs of this appeal are deposited by the plaintiff in the Court below within three months from this date. The amount to be deposited will be specified in the order of this Court to avoid possible dispute. If the amount is not deposited as directed, this appeal will stand decreed and the suit will stand dismissed with costs in both Courts. We asses the hearing fee in this Court at ten gold mohurs.

(3.) As one of the respondents is an infant, we desire to add that in our opinion the application for withdrawal is undoubtedly for his benefit.