Judgment:
ORDER
B.S. Chauhan, J.
1. The instant revision has been filed against the order dated 12-11-2001, by which the application filed by the revisionist under Order 23, Rule 1(3) of the Code of Civil Procedure, 1908 (for short, 'the Code') for giving permission to the petitioner to withdraw the suit with a liberty to file a fresh, if the need be arisen, has been rejected.
2. In respect of the property in dispute, the Estate Officer, in exercise of its power under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1965 (for short, 'the Act, 1965'), passed the order. The said order was challenged in appeal and the learned District Judge allowed the appeal of the present revisionist vide order dated 14-7-92 directing the respondents not to evict the petitioner. Being aggrieved and dissatisfied, respondents filed a writ petition before this Court challenging the order dated 14-7-92, which stood dismissed vide judgment and order dated 11-1-2000. Petitioner had also filed a suit for declaration and injunction in 1976 which was dismissed by the trial Court vide judgment and order dated 1-6-96. Being aggrieved and dissatisfied, petitioner preferred appeal against the said order and in that appeal, petitioner filed an application under Order 23, Rule l(3).of the Code to permit him to withdraw the suit with liberty to file a fresh, if need be arisen, which has been rejected for not showing the 'sufficient grounds'. Hence this revision.
3. Mr. A. L. Chopra, learned counsel for the petitioner, has submitted that once petitioner had succeeded before the Appellate Court and the order of the Estate Officer to evict him under the provisions of the Act, 1965 has been set aside and the writ petition against the same has been dismissed by this Court and as there is no apprehension at this stage for the petitioner from being evicted, the appellate Court has committed an error in exercise of its jurisdiction not allowing the petitioner to withdraw the suit with liberty to file a fresh, in case the need be arisen. On the contrary, Mr. Kailash Joshi, learned counsel for the respondents, has submitted that the appeal has been allowed under the Act, 1965 on 14-7-92 and the suit filed in 1976 was decided on 1-6-96; the appeal was pending since then, therefore, there was no 'sufficient ground' shown by the petitioner to withdraw the same with liberty to file a fresh, if need be arisen, hence this Court should not interfere with the order in its limited revisional jurisdiction under Section 115 of the Code.
4. I have considered the rival submissions made by the learned counsel for the parties and perused the record.
5. The aforesaid provisions of the Code provides for the privilege to the plaintiff to withdraw the suit at any stage as there is no provision to force him to continue with the litigation. However, in certain circumstances, at the most, costs etc. may be imposed upon him. The suit can be withdrawn even at the appellate stage and the Appellate Court may allow the withdrawal under Order 23, Rule 1(3) even where the suit had been dismissed by the trial Court. (Vide Afjal Begum v. Akhari Khanam, AIR 1915 All 123; Kamta Prasad v. Gaya Prasad, AIR 1972 All 143 and Surajpal Singh v. Gharam Singh, AIR 1973 All 466).
6. In Bhagabat Jena v. Gobardhan Patnaik. AIR 1983 Orissa 50, the Court held that a suit can be withdrawn at any stage, but that right is limited to the extent that it does not result in defeating the right which has already vested in the defendant. This is so, for the reason that the object of the aforesaid provision is not to enable the plaintiff, after the rights of the parties have been adjudicated, to obtain an opportunity of commencing a fresh litigation in order to avoid the result of his previous suit. Similar view has been reiterated in Ammini Kutty v. George Abrahim, AIR 1987 Ker 246.
7. In Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior, AIR 1987 SC 88, the Hon'ble Supreme Court explained the scope of the provision observing as under :--
'The law confers upon a man no right or benefit which he does not deserve. Whoever waives, abandons or disclaim a right will-lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason, the Court insisted that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is that of public policy, but it is not the same as rule of res judicata contained in Section 11 of the Code. .....'
8. In Homeo Dr. T. K. Prabhawati v. C. P., Kunhathabi Umma, AIR 1981 Ker 170, the Court distinguished the provisions of Clauses (a) and (b) of Rule 1(3) of Order 23, observing that they are not analogous or ejusdem generis and for attracting the provisions of Sub-clause (b), the applicant must satisfy the Court that there are sufficient grounds for withdrawal of the suit. The object of the rule is to enable a party to cover up all his omissions and failures and attempt a second suit on the same cause of action in order to avoid the result of all failures, but the rule is equally intended to ensure that a fair trial of suit on merit is not shut out because of a bona fide error or omission which cannot be cured in the same proceeding. Clause (b) has been inserted conferring the powers on the Court to pass appropriate order, allowing the withdrawal only to advance the cause of justice.
9. In Aiya Gounden v. Goppanna, AIR 1915 Mad 480, the Court held that whatever may be the interpretation of 'sufficient grounds', application must be decided applying all judicial norms.
10. In Abdul Ghafoor v. Abdul Rahman, AIR 1951 All 845, the Full Bench of Allahabad High Court held that the sufficient grounds mentioned in Clause (b) are analogous to the grounds taken in Clause (a), but at the same time it held that in principle, -interference in revision and the circumstances under which the application under Section 115 against an order of permitting withdrawal or refusing withdrawal of a suit, would depend upon the facts of each case.
11. In Geeta Bose v. Machine Tools of India Ltd.. AIR 1991 Cal 116, the Calcutta High Court held that there can be no reason as to why the import and amplitude of general words 'sufficient grounds' in Rule 1(3)(b) of Order 23, should suffer any unwarranted confinement. Therefore, if a suit has been filed on a particular ground and plaintiff wants to withdraw it with permission to file a fresh, he can file a fresh suit on the same grounds as well as on all other grounds which may be available to him at the time of filing the fresh suit and in such a case, permission should be granted.
12. In Smt. Sura Bala Kar v. Yasin Mia, AIR 1971 Tripura 45, the Court held that when a preliminary decree has been passed in the suit after a long trial, permission for withdrawal should not be granted, nor mere volume of work involved in the suit can be a ground for taking recourse to Clause (b) of Sub-rule (3), particularly when the application is opposed by the other party, nor application for withdrawal should be granted on imaginary ground or anxiety of the party to get rid of the old suit. 'Sub-rule (3) evidently has not been enacted to serve the purpose of drop-scene respective vexatious and inconvenient suits.'
13. In M/s. Hulas Rai Baijnath v. Firm K. B. Bass and Co., AIR 1968 SC 111, the Hon'ble Supreme Court held that in a suit for rendition of accounts by principal against his agent, the principal is entitled to withdraw the suit even at the stage when issues had been framed and some evidence has been recorded, but no preliminary decree has been passed for rendition of accounts. The language of Order 23, Rule 1(3) provides for unqualified right of plaintiff to withdraw a suit and if any permission to file a fresh suit is sought under Sub-rule (3), the plaintiff is liable for such course as the Court may award and becomes precluded from instituting any fresh suit in respect of the subject-matter under Sub-rule (3) of that rule.
14. In Debi Chand v. Prabhu Lal, AIR 1926 All 582, the Allahabad High Court held that once there has been a preliminary decree for rendition of accounts, if the plaintiff desires to withdraw his original claim for rendition of accounts but the defendant desires the case to proceed, the proper course is not to allow the plaintiff to withdraw the suit. Moreso, even if the case falls under Clause (a) or (b) of Sub-rule (3) of Order 23, Rule 1 the Court has the discretion to either allow the prayer for withdrawal or reject the same in the background of all the relevant facts and circumstances and if the case remains pending for several years and party has expended enough of labour and expenses for fighting out the suit, permission for withdrawal with liberty to file a fresh should not be granted.
15. In Kancherla Sarveswara Rao v. Kancherla Veerraju, AIR 1957 Andh Pra 303, it was held that whether sufficient grounds contained in Clause (b) of Sub-rule (3) of Order 23, Rule 1 is to be analogous to the grounds mentioned in Clause (a), is immaterial for the reason that there will be no difficulty in actual practising between the cases to which the rule could be applied and those which are beyond the remedial operation,
16. In Duryodhan Jena v. Satyabadi Samal, AIR 1986 Orissa 58, the Court held that undoubtedly, the term 'sufficient ground' has to be given a wide connotation and not restrictively. However, it is the judicial discretion of the Court to consider whether the grounds stated by the plaintiff should be accepted as sufficient to permit him to file a fresh suit after removing the defect in the suit pending before the Court. However, that contained a case under Clause (a) of Sub-rule (3) of Order 23, Rule 1. Therefore, it is the ground stated by the plaintiff in the application under Order 23, Rule 1(3) of the Code which has to be adjudged for grant of permission to file a fresh suit.
17. In view of the above, the legal position can be summarised that the provisions of Order 23, Rule 1 of the Code are based on public policy not to give an opportunity to a litigant to abuse the process of the Court. However, in certain circumstances, he can be permitted to withdraw the suit with liberty to file a fresh, only in case he shows the 'sufficient grounds' as mentioned in Clause (a) or (b) of Sub-rule (3) of Rule 1 of Order 23. The suit can be withdrawn even at the appellate stage but it is not permissible for a litigant to defeat the accrued right of the other party by withdrawing the suit. The Court has been conferred discretion to permit a litigant to withdraw the suit only if 'sufficient ground' is shown warranting such a permission.
18. The instant case requires to be considered in the light of the aforesaid settled legal proposition.
19. It is settled legal proposition that the title cannot be decided in summary proceedings and for redressal of that grievance, civil suit is the only remedy (Vide Govt. of Andhra Pradesh v. Thummala Krishna Rao, AIR 1982 SC 1081; State of Rajasthan v. Padmawati Devi, 1995 Supp (2) SCC 290) and Mohammed Yunus v. Urban Improvement Trust, Jodhpur, AIR 1999 Raj 334). Therefore, what has been decided by this I Court earlier under the Act, 1965 does not decide the title in favour of the present petitioner. The suit had been filed for declaration of title and grant of injunction not to interfere with the peaceful possession of the petitioner by the respondents. Till today, there is no declaration of title in favour of the petitioner. A decision in the summary proceedings does not amount to declaration in his favour.
20. The application has been filed on the ground that in respect of the suit property, a notice dated 1-4-77 under the provisions of the Act, 1965 was served and the matter ultimately stood finalised by the order of this Court and the relief claimed in the suit had already been granted to the plaintiff, therefore, he may be permitted to withdraw the suit with liberty to file the same if need be arisen. 1 am of the considered opinion that the application was totally misleading. There was no formal defect on the basis of which the suit was sought to be withdrawn with liberty to file a fresh. Moreover, the relief claimed in the suit had not been granted in any collateral proceeding in favour of the plaintiff. The suit for declaration has been filed and the trial Court has rightly held that there was no 'sufficient ground' shown for permission to withdraw it with a liberty to file a fresh.
21. The Court should not lose sight of the fact that the suit was filed by the petitioner on 28-5-76. It was dismissed by the trial Court on 1-6-96. The appeal was preferred and application for withdrawal was filed in the year 2001. Therefore, a litigation which remained pending for a quartar century and wherein the parties stood exhausted of their resources and energy in fighting the case, the suit had been dismissed vide judgment and order dated 1-6-96, it would be a real hardship to the opposite party if it is left to face another order of litigation permitting the petitioner to withdraw this litigation after expiry of about two and half decades and bring another one, forcing the another party to face trial just at the fancy of the petitioner.
22. The revision is dismissed with costs, which is quantified at Rs. five hundred only.