Plaintiff filed suit against S (widow of his brother) for declaration of title to the suit property, to put him in the possession and for arrears of rent with further mesne profits… Decide

Question: Plaintiff filed suit against S (widow of his brother) for declaration of title to the suit property, to put him in the possession and for arrears of rent with further mesne profits. The suit was decreed on 05.09.1983. Three days thereafter, the plaintiff sold the suit property to B.

That widow filed an appeal. During the pendency of the appeal, B was impleaded as respondent under Order 22 Rule 10 C.P.C. since the property in suit had been assigned to him. The plaintiff filed an application for dismissing the suit as not pressed as he had compromised the dispute with S and wanted the compromise to be recorded. It is opposed by B contending that he being transferee pendente-lite was virtually interested in decree remaining intact.

Plaintiff contended that under Order 23 Rule 1 C.P.C., he has right to compromise suit with S against whom he had filed suit and he cannot be forced by any of the parties to continue to prosecute the suit. Decide the application of the plaintiff.

Find the answer to the mains question only on Legal Bites. [Plaintiff filed suit against S (widow of his brother) for declaration of title to the suit property, to put him in the possession and for arrears of rent with further mesne profits… Decide.]

Answer

The relevant portion of Order 23 Rule 1 provides as under:-

“Withdrawal of suit or abandonment of part of claim.-

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

(3) Where the Court is satisfied,-

1. 1. that a suit must fail by reason of some formal defect, or
   2. that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.”

Order 23 Rule 1, quoted above, provides that a plaintiff can withdraw a suit or abandon a part of his claim unconditionally. It creates a right in favour of the plaintiff to withdraw the suit, at any time, after its institution. Once the suit is withdrawn or any part of the suit is abandoned against all or any of the defendants, unconditionally, the plaintiff cannot bring a fresh suit on the same cause of action unless leave of the Court is obtained as provided by Order 23 Rule 1(3) (b).

In other words, a plaintiff cannot while unconditionally abandoning a suit or abandoning a part of his claim, the reserve to himself the right to bring a fresh suit on the same cause of action. [Hulas Rai Baij Nath v. K.P. Bass & Co., AIR 1968 SC 111]

The question in the present case is, however, a little different. If the suit has already been decreed or, for that matter, dismissed and a decree has been passed determining the rights of the parties to the suit, which is under challenge in an appeal, can the decree be destroyed by making an application for dismissing the suit as not pressed or unconditionally withdrawing the suit at the appellate stage. It is this question that is to be decided in this appeal.

Every suit, if it is not withdrawn or abandoned, ultimately results in a decree as defined in Section 2(2) of the Code of Civil Procedure. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought.

It is at this stage that the rights of the parties are crystallized and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. Now, the decree can be recalled, reversed or set aside either by the Court which had passed it as in review, or by the appellate Court.

Since the withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits.

The Bombay High Court in Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel & Ors., AIR 1925 Bombay 425 in which the Division Bench of that Court observed that though as a general proposition, a plaintiff can, at any time, withdraw a suit but where the parties have entered into a compromise and the defendant has acquired a right under the compromise, it would not be open to the plaintiff who had consented to the compromise, afterwards to annul its effect by withdrawing the suit under Order 23 Rule 1 read with Rule 3 thereof.

The Division Bench of the Allahabad High Court in Vidhydhar Dube and others v. Har Charan and others, AIR 1971 Allahabad 41 held that the right of the plaintiff to withdraw the suit at the appellate stage is not an absolute right but is subject to rights acquired by defendant under the decree. It was also observed that withdrawal may be permitted if no vested or substantive right of any party to the litigation is adversely affected.

Thus, applying the aforementioned judgements to the present case at hand, it is clear that if the withdrawal of the suit at the appellate stage would have the effect of destroying the rights which had come to be vested in the defendant-respondents, the suit would not be permitted to be withdrawn. It was also held that though the plaintiff has an unqualified right to withdraw the suit under Order 23 Rule 1(1) C.P.C., he cannot be allowed to do so at the appellate stage. [R. Rathinavel Chettiar And Anr v. Sivaraman And Ors 1999) 4 SCC 89]

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