Allowed

Vijay Kumar and Ors. v. Pano Devi and Ors.

Patna HC24 Jan 2013C.R./362/2010

Case brief

AI extract

What is this about?

In a civil revision, the High Court set aside the trial court's rejection of an application to withdraw a suit for injunction with liberty to file an eviction suit. The court held the plaintiff has an exclusive right to withdraw pending suit unless the defendant has a vested right, and the two suits involve different factual foundations.

What did the court decide?

The application to withdraw the suit for injunction with liberty to file a suit for eviction was allowed.

Vijay Kumar and Ors. Vs Pano Devi and Ors. — Specific Performance | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.362 of 2010

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Vijay Kumar, S/o Late Ram Gopal Lal 2. Dinesh Kumar, S/o Late Ram Gopal Lal 3. Manoj Kumar, S/o Late Ram Gopal Lal 4. Dharmshila Devi, D/o Late Ram Gopal Lal 5. Gita Devi, D/o Late Ram Gopal Lal All residents of Mohalla-Chailital (Nayagaon) P.O. Guljarbagh, P.S. Alamganj, District-Patna .... .... Petitioner/s Versus 1. Pano Devi, W/o Late Basudeo Yadav 2. Baudh Ram, S/o Late Basudeo Yadav 3. Azad Yadav, S/o Basudeo Yadav All residents of Mohalla-Kankarbagh, P.S. Kankarbagh, District-Patna .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Ashutosh Ranjan Pandey Mr. Rakesh Narayan Singh Mr. Ramanuj Tiwary For the Respondent/s : Mr. Deo Kumar Prasad Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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06. 24-01-2013 Heard the parties.

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This Civil Revision application is directed against the order dated 15.02.2010 passed by learned Additional Munsif- XVII, Patna in Title Suit No. 208 of 1996, Trial No. 02 of 2009, whereby the prayer made by the petitioner under Order 23 Rule 1 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) seeking withdrawal of the suit with a liberty to file a fresh suit has been rejected.

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The suit in question has been filed by the petitioner seeking to injunct the defendant from entering survey plot no. 775 situated in the town and district of Patna. While the suit was pending

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Patna High Court C.R. No.362 of 2010 (6) dt.24-01-2013

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consideration, upon legal advice, the petitioner thought it proper to withdraw the suit for injunction and to file a proper suit seeking eviction of the defendant from the suit property. Proceeding therefrom the application in question was filed under Order 23 Rule 1 of the Code praying for withdrawal of the suit for filing an eviction suit against the defendant. The same having been refused hence the present application.

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It is the contention of the petitioner that it is an exclusive right of the plaintiff either to pursue or not to pursue the matter and that a permission seeking withdrawal of a suit cannot be refused by the trial court simply on grounds that a permission has been sought to file a proper suit. It is stated that the law is well settled on this issue and the order impugned is unsustainable.

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The position has been contested by Mr. Deo Kumar Prasad Sinha, learned counsel appearing for the defendant. It is submitted that the plea of the petitioner is only to cause harassment to the defendant in keeping him in prolonged litigation. It is admitted that the defendant is residing over the suit property.

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I have heard learned counsel for the parties and have perused the materials on record including the impugned order. The trial court while rejecting the prayer of the petitioner has mentioned that the matter is pending at the stage of the evidence

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Patna High Court C.R. No.362 of 2010 (6) dt.24-01-2013

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by the plaintiff. The learned trial court considering that the matter is pending since 1996 has rejected the prayer of the petitioner that any suit for eviction filed at this stage by the plaintiff would be barred by limitation. Learned court below following the principles that the objective of the Court is to prevent multiplicity of litigation has rejected the prayer of the petitioner. This Court is certainly not satisfied by the reasons assigned by the learned court below in rejecting the prayer of the petitioner. A suit for injunction and a suit for eviction are on completely different pedestal and even if the petitioner would have chosen to withdraw his suit for injunction, it certainly would not have operated as an estoppel or res judicata in maintaining an eviction suit. Whether or not the eviction suit would be barred by law of limitation was certainly not within the arena of the learned court below to express

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any opinion. The provisions of Order 23 Rule 1 of the Code has come up for consideration in catena of judgments. A few of them

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are:

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(i) 1967(3) SCR 886; (Hulas Rai Baij Nath vs. Firm K.B. Bass & Co.)

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(ii) AIR 1973 SC 643; (R. Ramamurthi vs. V. Rajeswararao)

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(iii) 2007(7) SCC 65; (Kandapazha Nadar vs. Chitraganiammal)

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(iv) 2009 (6) SCC 194 (Sneh Gupta vs. Devi Sarup) It has been universally held that the plaintiff cannot be

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Patna High Court C.R. No.362 of 2010 (6) dt.24-01-2013

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prevented from withdrawing his suit until the Court comes to a conclusion that some vested right has come into existence in favour of the defendant. There is no such opinion expressed by the learned trial court while rejecting the prayer. In fact the prayer of the petitioner is most reasonable when he has realised that the proper suit in the present context was a suit for eviction and even if the matter has remained pending for sometime that could not have been a ground for refusal of the prayer. The other reasons assigned by the court below to save multiplicity of litigation again is not a correct opinion inasmuch as the foundational facts in the two suits are different.

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Considering the matter in the backdrop of the statutory provisions and the judicial pronouncements referred to above, this Court cannot but hold that the order impugned suffers from legal infirmity as well as material irregularity and is accordingly set aside. As a consequence of the conclusion drawn by this Court hereinabove, the natural corollary would be that the withdrawal application placed at Annexure-2 of the present proceedings is allowed with the liberty prayed thereunder.

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The Civil Revision application is allowed but without any order as to cost.

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S.Sb/-

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(Jyoti Saran, J)

Vijay Kumar and Ors. v. Pano Devi and Ors.

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Vijay Kumar and Ors. v. Pano Devi and Ors.

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