Dismissed

Pritam Singh deceased through Sarbjit Singh Anr. v. Sadhu Ram

Himachal Pradesh HC30 Aug 2017RSA/114/2017

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a suit for permanent injunction and possession regarding joint tenancy of a shop, the High Court dismissed the appeal. The Court held that a withdrawn suit leaves rights undetermined, rendering prior findings non-binding, and rejected the claim that previous sworn statements constituted valid additional evidence.

What did the court decide?

The appeal was dismissed in limine with costs borne by parties. Pending applications were disposed of.

Pritam Singh deceased through Sarbjit Singh Anr… — Property and Title | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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R.S.A. No. 114 of 2017

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Date of decision: 30^th August, 2017

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Pritam Singh through his legal representatives

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..…Appellants

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Versus

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Sadhu Ram and ors. …..Respondents

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting ?¹ No

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For the appellants: Ms. Bhavana Datta, Advocate. For the respondents: Nemo

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Tarlok Singh Chauhan, Judge (Oral)

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Aggrieved by the impugned judgments and

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decrees so concurrently passed against him by the learned courts below, the plaintiff has preferred the instant appeal invoking Section 100 of the Code of Civil Procedure . 2 The brief facts giving rise to the present appeal are that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from causing any interference or taking forcible possession or dispossessing

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1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

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him from the shop denoted by letters A, B, C and D shown in red colour in the site plan, located in the land comprised in Khasra No.1651, Khewat No.163, Khatauni No. 218, measuring 30-88 sq. mts., in main bazaar Una, Tehsil and District Una, H.P. and in the alternative, suit for possession was also prayed for.

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3 It was claimed that the shop in question had been coming in possession of defendant No.1 and father of the plaintiff as joint tenants, in which they had been running business of tailoring for the last more than 38 years. The rent of the shop was Rs.100/- per month, i.e. Rs.1200/- per annum, out of which Rs.600/- was being paid by the father of the plaintiff and remaining rent was being paid by defendant No.1. After the death of father of the plaintiff, he came in possession of the shop in question and continued to pay the rent. It was further averred that somewhere in the year 1980, defendant No.2 purchased the shop in question from its owners and became the owner thereof. However, the tenancy continued and the plaintiff as well as defendant No.1 and they remained as joint tenants of the shop. In the year 1999, defendant No.2 in connivance with defendant No.1 filed Civil Suit No.121/1999 against the plaintiff which came to be

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dismissed by the then learned Sub Judge (1) Una on 11.3.2003 holding that the father of the plaintiff and defendant No.1 were joint owners in the shop in question. Defendant No.2 preferred an appeal against the judgment and decree dated 11.3.2003, which was dismissed as withdrawn on 5.10.2007. Thereafter, the defendants again started threatening the plaintiff to interfere in his peaceful possession and to dispossess him forcibly from the shop in question. The plaintiff made several requests to the defendants to desist from their illegal designs, but all in vain, hence, the suit.

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4 The defendants contested the suit by filing separate written statements. It was alleged by defendant No.1 that the father of the plaintiff was working as ‘Karigar’ with defendant No.1, but he had left the job about 20 years back before his death , whereas defendant No.1 had also left the tailoring work due to his ill health and now one Raj Kumar is in exclusive possession of the shop in question and doing the tailoring work. It was further averred that the judgment and decree dated 11.3.2003 passed by the then Sub Judge (1) Una is non est in view of the order dated 5.10.2007 passed by

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the appellate Court.

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5 Defendant No.2 in her written statement took

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almost same and similar grounds as were taken by defendant No.1 besides preliminary objections regarding cause of action, locus sta ndi and mis-joinder of necessary parties. It was claimed that since the plaintiff was not in possession of the shop in question, question of giving threats to him by the defendants did not arise.

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6 On the pleadings of the parties, the learned trial

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court on 27.11.2008 framed the following issues:-

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1. Whether the suit premises is under joint possession of the plaintiff along with defendant No.1, as alleged? OPP.

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2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP

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3. Whether the plaintiff is having no cause of action? OPD-2

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4. Whether the plaintiff has no locus standi to file the present suit? OPD-2.

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5. Whether the suit is bad for non-joinder to necessary parties? OPD-2.

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6. Relief.

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7 After recording the evidence and evaluating the

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same, the learned trial court dismissed the suit filed by the plaintiff vide judgment and decree dated 27.1.2015 and the appeal preferred against the said judgment and decree also came to be dismissed by the learned first appellate court vide

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judgment and decree dated 22.1.2016 constraining the plaintiff to file the instant appeal.

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8 It is vehemently argued by Ms. Bhavana Datta, Advocate, that the learned first appellate court has erred in rejecting the application under Order 41 Rule 27 CPC filed by the plaintiff for leading additional evidence and has further erred in ignoring the statements made on oath in the previous suit (Civil Suit No.121/99) by concluding that the same have no evidentiary value.

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9 I have heard the learned counsel for the plaintiff and have also gone through the records of the case carefully.

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10 Indubitably, the additional evidence sought to be examined by the plaintiff were the statements recorded in the previous suit, which according to the plaintiff had been made on oath, therefore, could not be excluded from consideration.

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It is also not in dispute that the previous suit inter se the parties was dismissed by the then learned Sub Judge (1), Una vide judgment and decree dated 11.3.2003 holding therein the father of the plaintiff and defendant No.1 to be joint tenants in the shop in question. However, in the appeal filed by defendant No.2, an application under Order 23 Rule

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1 C.P.C. was filed and was allowed; and consequently the

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suit came to be withdrawn on 5.10.2007 with liberty reserved to file a fresh suit.

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Therefore, the moot question is as to what would

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be the effect of withdrawal of the suit.

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12 The dismissal of the suit as not pressed at the appellate stage obviously had the effect of destroying the decree passed in favour of a party. The effect of withdrawal of the suit is to leave the rights of the parties undetermined insofar as they were asserted in the suit.

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13 In the case of (Rani) Kulandai Pandichi and another vs. Indran Ramaswami Pandia Thevan, AIR

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1928 Mad. 416, it was held as follows:

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“Permission to withdraw a suit decides no matters in controversy and does not confer any rights on a party and the fact that the person withdrawing is precluded from bringing a fresh suit on the same cause of action cannot be said to have that effect. It has been held that an order permitting the withdrawal of a suit or appeal is not a decree within the meaning of the Civil Procedure Code. We need only refer to Patlogi vs. Gam, 1891 (15) Bom. 370, Jogodindra Nath vs. Sarat Sundari Debi, 1891 (18) Cal. 332 and Abdul Hussain vs. Kasi Sabu, 1900 (270) Cal. 362.”

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14 Notably, ratio of the judgment in (Rani) Kulandai

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Pandichi’s case (supra) has been approved by the Hon’ble

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Supreme Court in Kandapazha Nadar and others vs. Chitraganiammal and others, (2007) 7 SCC 65.

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15 Even otherwise, this question has been directly answered by the learned Single Judge of Punjab and Haryana High Court in Gram Panchayat, Village Ismailpur vs. Pawan Singh, 2001 (127) PLR 284 , wherein it has been categorically held that the findings recorded in the judgment of the earlier suit are of no consequence since the very suit in which such findings have been recorded is withdrawn. It is apt to reproduce relevant observations as contained in para 1, which read as under:-

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“1. Plaintiff-respondent's suit was dismissed by Subordinate Judge, Jagadhri vide order dated 28.2.1983. Learned Subordinate Judge gave categoric findings on issues No. 1 and 2 namely that plaintiff has failed to prove his ownership over the disputed site and has also failed to establish his ownership by way of adverse possession. He found issues No. 1 and 2 against the plaintiff. Plaintiff went in appeal. His appeal was allowed by Additional District Judge, vide order dated 11.3.1985. Additional District Judge, Ambala did not advert to any evidence at all so far as issues No. 1 and 2 are concerned which are vital issues in the case. He based his findings in appeal on judgment Ex. P-4 which had been passed in Civil Suit No. 670 of 1977 by Sub Judge IInd Class, Jagadhri, Judgment Ex. P-4 was rendered meaningless when it was appealed against and appeal was allowed to be withdrawn, as also the suit namely civil suit No. 670 of 1977. Findings recorded in judgment Ex. P-4 were of no consequence when the very suit in which the said

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findings had been given, was withdrawn. When the suit was withdrawn, it is as if that suit was never instituted. If it is taken that the suit was never instituted, no finding given there could operate so far as this suit is concerned. Since the findings of the Additional District Judge, Ambala on issues No. 1 and 2 rested on what had been decided by Sub Judge IInd Class, Jagadhri in civil suit No. 670 of 1977 which became non-existent, there is no option for this Court but to set aside the decree of the first appellate court and direct the first appellate Court to decide the appeal afresh. While deciding the appeal afresh, first appellate court shall take into account evidence led in this suit. It shall not take into account at all what had been decided in the earlier suit. First appellate Court shall discuss the entire evidence and then give findings thereon and decide the appeal. This appeal shall be heard by the first Additional District Judge, Jagadhri before whom the parties shall appear on 30.9.2000.”

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16 I see no reason to take a different view than the

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one taken in the aforesaid case s and, therefore, no fault can be found with the findings recorded by the learned first appellate court whereby rejecting the application filed by the plaintiff under Order 41 Rule 27 CPC for leading additional evidence.

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17 In addition thereto, based on the same analogy and reasoning, the statements made in the previous suit have rightly been discarded by the learned courts below. The other findings as concurrently recorded by the learned courts

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below are pure findings of fact and are, therefore, immune

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from challenge in second appeal.

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18 Having said so, no question of law much less substantial question of law arises for consideration in this appeal and the same is accordingly dismissed in limin e , leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

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Before parting, it needs to be observed that the dismissal of this appeal will not come in the way of the plaintiff in assailing the order/judgment passed by the learned first appellate court on 5.10.2007 in the appeal filed by defendant No.2 in the earlier proceedings, whereby defendant No. 2 was permitted to withdraw the suit under Order 23 Rule 1 CPC with liberty to file a fresh suit. Needless to say that as and when such application/appeal to have the order/judgment set aside is filed by the plaintiff, the same shall be decided strictly in accordance with law uninfluenced by the dismissal of this appeal or from what otherwise has been held by the learned courts below.

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At the same time, this judgment shall not be construed or taken to be creating any additional right in favour of the plaintiff to have the aforesaid order/judgment

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dated 5.10.2007 set aside, save and except the right available to him under the law. Meaning thereby that any further proceedings initiated by the plaintiff will essentially be in accordance and shall abide by the law.

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August 30, 2017 (Tarlok Singh Chauhan) (pankaj) Judge

Pritam Singh deceased through Sarbjit Singh Anr. v. Sadhu Ram

Case brief

What is this about?

What did the court decide?

Pritam Singh deceased through Sarbjit Singh Anr. v. Sadhu Ram

Case brief

What is this about?

What did the court decide?

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