BIJIT KUMAR BANIK Vs. KALYANI DEB
HIGH COURT TRIPURA
Bijit Kumar Banik
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Arindam Lodh,J. -
(1.) None appears for the parties to the lis.
(2.) The present petition has been filed in the year 2019. It reveals that the plaintiff instituted a suit for declaration and recovery of possession. The defendant No. 5, the petitioner herein, contested the suit by filing written statement. The plaintiff also submitted some documents in favour of the plaint case. During pendency of the suit, the plaintiff had filed a petition under Order-XXIII, Rule-1 for withdrawal of the suit. The defendant No. 5 filed an objection to such prayer of the plaintiff for withdrawal of the suit with the prayer to return the documents which he submitted along with plaint. The learned Civil Judge, Sr. Division, Agartala, West Tripura, Court No. 1, had allowed the withdrawal of the suit with further liberty to return the documents which the plaintiff had submitted along with the plaint vide order dated 15.03.2019 in T.S. 78 of 2017.
(3.) By this revision petition, the defendant No. 1 has challenged the said order dated 15.03.2019 passed in T.S. 78 of 2017 permitting the plaintiff to withdraw the suit along with an order to return the documents to the plaintiff. I have minutely perused the order dated 15.03.2019 which is reproduced herein below:
'Ld. Counsel for the plaintiff and defendant No.5 are present.
Today the case was fixed for hearing on the withdrawal petition filed by the plaintiff under Order XXIII Rule 1 of CPC along with a prayer to permit the plaintiff to withdraw the original document from the present suit.
Today a petition has been filed by the defendant No.5 with a prayer for passing necessary order after considering and appreciating the false documents ( being Sl.Nos. 1 to 3 mentioned in the list of the documents ) along with false statements in the pleadings relating to said documents by sewering affidavit by the plaintiffs in the Title Suti No. 78 of 2017 i.e., the instant suit .
Heard both the sides on the petitions available before this court.
Ld. counsel of the defendant No. 5 submitted that the withdrawal of the suit cannot be granted at this stage after passing of two years of filing this suit as the documents on the basis of which the suit has been filed are manufactured by the plaintiffs to file this suit.
It is also submitted, if withdrawal is granted heavy cost may be imposed upon the plaintiffs.
Ld. counsel also submitted that the documents mentioned in the Sl.Nos. 1 to 3 of the petition filed today by the defendant No. 5 must be retained in the custody of this court so that necessary action can be taken against the plaintiffs.
On the other hand Ld. Counsel of the plaintiffs submitted that withdrawal of the suit without liberty to file a fresh suit is the right of the plaintiff and so defendant cannot raise any objection against such withdrawal.
It is also submitted by the Ld. Counsel of the plaintiffs that after disposal of the suit court cannot retain any document in the custody of the court. Thus, Ld. Counsel prayed to pass necessary order Order XXIII Rule 1 (1) of CPC empowers the plaintiff to withdraw the suit at any time after the institution of the suit.
The embargo in granting such prayer is the Sub-Rule-3 of Rule 1 of Order XXIII where the plaintiff is to satisfy the court to get an order of withdrawal of the suit with liberty to file afresh.
Sub-Rule-4 of Rule 1 makes the plaintiff liable to pay cost for withdrawing any suit or any claim without any permission to file afresh.
Thus, whenever the plaintiff claims simple withdrawal the defendant has no authority to raise any objection against such claim and even the court also cannot prevent the plaintiff from withdrawing of the suit. Only power vested with the court is to impose cost upon the plaintiff while making such withdrawal.
In this respect Hon'ble Supreme Court in Anil Kumar Singh Vs. Vijay Pal Singh and Ors. in CIVIL APPEAL No. 20007 OF 2017 (ARISING OUT OF SLP (C) No.16749 of 2010) decided on 30.11.2017 held '24) In our considered opinion, when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in sub-rule (4).
25) The reason is that while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him.'
Thus, though the defendant No. 5 filed W/O against the withdrawal petition that cannot be considered by this court.
Regarding the petition filed by the defendant No. 5 for passing necessary Order considering an appreciating the documents mentioned in the Sl. Nos. 1 to 3 of the petition to be false along with false statement made in the pleadings, I am of the opinion that there is nothing on the record from which this court can prima-facie reached to the conclusion that the mentioned documents are false and the statements made in the pleadings of the plaintiffs are also not true. If the defendant No. 5 considers those documents as false/forged he has the option to choose proper forum for getting remedy against such wrongful act of the plaintiff.
As per Order XIII Rule IX of CPC the parties to the suit are entitled to get back their documents submitted in the suit where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and where the suit is one in which an appeal is allowed when the court is satisfied that the time for preferring an appeal has elapsed and no appeal has been preferred, or if an appeal has been preferred, when the appeal has been disposed of.
The present suit is going to be disposed of on withdrawal and so no appeal can be preferred against such disposal of this suit as per Section 104 of CPC and Order XLIII Rule 1 of CPC.
Thus, right to claim the documents in this suit accrues just after the disposal of this suit as this court cannot impound the mentioned documents under Rule 8 of Order XIII.
Accordingly, the plaintiffs are hereby allowed to withdraw this suit from the file of this court subject to payment of cost of Rs. 2,000/- (Two thousand) only payable to the defendant No. 5 by the plaintiffs.
Return the original documents to the plaintiffs which are submitted by them.
Thus, this case is disposed of on contest.
The disposal has been shown contested as the defendant No. 5 raised objection against the withdrawal petition which called for judicial determination in view of Rule 745 of the Civil Court Rules and Orders of Gauhati High Court which has been adopted by our High Court also.' ;
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