This Court dismissed a writ petition challenging a District Judge's order that allowed withdrawal of an appeal and injunction suit conditioned upon the findings of the trial court remaining intact. The Court held that the First Appellate Court did not err in imposing the condition as the findings were recorded after contest.
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Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 9250 of 2018
Petitioner :- Zubaida Khatoon And 7 Others Respondent :- Haji Abdul Haq And Another Counsel for Petitioner :- Manoj Kumar Sharma,Namit Kumar Sharma
Hon'ble Mrs. Sunita Agarwal,J.
Supplementary affidavit filed today is taken on record.
Learned counsel for the petitioners prays for and is granted permission to make correction in the prayer clause of the present petition within the course of the day.
The present petition is directed against an order dated 27.9.2018 passed by the District Judge, Moradabad whereby while allowing application paper no. 114/c under Order 23 Rule 1 CPC and dismissing the appeal as well as Original Suit No. 109 of 2010 (Smt. Zubaida Khatoon and other vs. Haji Abdul Haq and others) as withdrawn, the appellate court has put a condition that the findings recorded by the trial court on the issues in contest between the parties will remain intact.
The submission of learned counsel for the petitioners to assail the order impugned keeping the findings of the trial court as intact are that the plaintiffs/appellants had a right to withdraw the suit at any stage of the proceedings. The appeal is continuation of the suit and the application for withdrawal filed by the plaintiffs at the stage of appeal, could not have been decided by putting a condition regarding the findings on the issues by the trial court.
The submission is that the findings returned by the trial court on issue no. 1 regarding the right of the plaintiffs/petitioners to retain the possession of the suit property as lawful tenant would operate against him in a subsequent suit filed by the landlord for his eviction.
The submission is that in a suit for injunction, the trial court cannot decide the rights of the parties which are complex and intricate question. The Original Suit No. 109 of 2010 was a simplicitor suit for injunction and the findings returned by the trial court on issue no. 1 cannot be kept intact so as to operate as res-judicata in a subsequent suit.
Reliance is placed upon the judgment of this Court in Suraj Pal Singh vs. Gharam Singh (Second Appeal No. 521 of 1969) reported in AIR (ALL) 1973 pag 466 to submit that in an injunction suit, no right would confer in favour of the defendant rather the plaintiff has an absolute right to withdraw the suit even at the stage of the appeal.
It is contended that the decree of dismissal of suit by itself does not confer any right on any party to the suit. It is, thus, sought to be
submitted by the learned counsel for the petitioner that this Court may clarify that the findings returned by the trial court on issue no. 1 cannot be kept intact and would not operate against the petitioners/plaintiffs in any future proceeding.
Considering the said submissions of learned counsel for the petitioners and noticing the fact that the injunction suit namely Original Suit No. 109 of 2010 was filed by the petitioners with the prayer to restrain the respondents from evicting them from the suit property. The said injunction has been sought on the premises that the plaintiffs are in lawful occupation of the suit property being tenant thereof. The defence came up with the denial of the right of the plaintiffs to occupy the suit property as tenant.
Issue no. 1 framed by the trial court is as under:-
" ववदबबबददसबखयव - 1 इसआशयकवबवरबचतबकयवगयवहहबककयवववददगणबवववबदत मकवनममबवधधकबकरवययदवरकवबबजहह ?
The findings returned by the trial court while deciding the issue no. 1 after contest by the parties, cannot be permitted to be scrapped from the record, for the fact that the suit was dismissed after recording a categorical finding on issue no. 1, i.e. right of the plaintiffs to retain possession of the suit property as lawful tenant. What would be the effect and impact of the findings returned by the trial court while dismissing the injunction suit, in subsequent proceedings is not the question to be answered by this Court. This Court, therefore, desist from delving on the said issue being raised by the learned counsel for the petitioners in this petition.
It is always open for the petitioners to plead before the appropriate Court on the said issue.
In so far as the submission of learned counsel for the petitioners based upon the judgment of this Court in Suraj Pal Singh (supra), relevant it to note that the said suit was filed for injunction with the assertion that the defendants had raised a 'wall' over a public pathway. The injunction suit was dismissed with the finding that the plaintiffs had failed to establish by the evidence on record that the land in dispute formed part of the village pathway.
At the stage of second appeal, the plaintiffs had filed application under Order 23 Rule 1 CPC for withdrawal of the suit. The said withdrawal application was contested by the defendants with the assertion that certain rights had been accrued in their favour with the dismissal of the injunction suit and affirmation of the said decree by the first appellate court.
The Second Appellate court while allowing the withdrawal application had observed that by the dismissal of the injunction suit no right could be accrued in favour of the defendants. The said observation made by this Court, cannot be read as the ratio of the judgment so as to treat it as a law of the precedent to be followed in the present case rather it was the observation made in the facts and circumstances of that case, inasmuch as, the injunction suit therein was with respect to a public pathway. There cannot be a
doubt that with the dismissal of the injunction suit with regard to a public pathway, there was no declaration of right of the defendants with respect to the suit property. Even if, such a suit is withdrawn, the rights of the defendants in his own land would not be effected in any manner.
Noticing the fact that the aforesaid observation has been made in the peculiar facts and circumstances of that case, no benefit can be derived by the petitioners herein on the basis of the said judgment.
The First Appellate Court cannot be said to have erred in putting the condition while allowing application for withdrawal of the suit that the findings returned by the trial court on the issues of contest between the parties would remain intact, inasmuch as, the said findings were returned after contest by the plaintiffs/applicants.
No interference is thus required in the present petition.
The petition is found devoid of merits and hence dismissed .
Order Date :- 4.1.2019 Brijesh
2 issues framed by the court
Whether this Court should interfere with the District Judges order allowing withdrawal of appeal subject to condition that trial court findings remain intact.
Whether the finding regarding right of plaintiffs to retain possession as lawful tenant in dismissed injunction suit impacts subsequent proceedings.
Colour shows how this judgement treated each authority
Suraj Pal Singh vs. Gharam SinghDistinguished¶21
Suraj Pal Singh vs. Gharam Singh (Second Appeal No. 521 of 1969) reported in AIR (ALL) 1973 pag 466 · Who else cites this
Zubaida Khatoon and 7 Others
Haji Abdul Haq and Another
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
