MALLA QADIR Vs. MALLA MAHMADOO
HIGH COURT OF JAMMU AND KASHMIR
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MUFTI BAHA -UD -DIN FAROOQI, ACTING C.J. -
(1.) THIS revision is directed against an order dated 4 -2 -1982, passed by Munsiff Chadura whereby he has allowed the plaintiff to withdraw his suit against defendant No. 2 and passed a decree in terms of the compromiseentered into by him with defendantsNos. 1 and 3. The dispute in this suitrelates to a rice husking machine. Theplaintiff claimed to be its sole ownerand occupier. He had asked for a decree for permanent injunction against thedefendants on the allegation that theywere interfering with his possessionwithout any right or title. Along withthe suit, the plaintiff moved an application for temporary injunction. Defendant No. 2 opposed the application. Hiscase was that the rice husking machinewas the joint property of the plaintiffand defendants Nos. 1 and 2. After hearing the parties, the court, by its orderdated 30 -12 -1981, directed the appointment of a receiver in respect of theabove disputed property and nominatedone Maulvi Masoodi, to act as such receiver. The said Maulvi declined to actas the receiver. According to the courtby its order dated 6 -1 -1982, directedthat SHO Police Station Chadura, totake over the machine and entrust it tothe custody of a respectable person inthe area, who shall run the same tillfurther orders. In compliancewith this order, the SHO entrusted the said machine on Supradnama to one, Ghulam Rasool Malla.Thereafter on 4 -2 -1982, the plaintiff anddefendants Nos. 1 and 3 entered into acompromise. They drew up a formalcompromise deed which was filed 'in thecourt. By virtue of this compromise,defendants Nos. 1 and 3 conceded theplaintiff's exclusive title and possessionin respect of the disputed machine. Thecourt recorded the compromise. Simultaneously the plaintiff requested for thedeletion of the name of defendant No. 2from the array of the defendants. Thecourt granted the prayer Accordinglythe court dismissed the suit as withdrawn against defendant No. 2 andpassed a decree in favour of the plaintiff against defendants Nos. 1 and 3.Hence this revision.
(2.) BEFORE me, it was argued on behalf of defendant No. 2 that in view of the fact that receiver had been appointed and the property had passed into custodia legis the suit could not have been allowed to be withdrawn against defendant No. 2. In reply, it was contended that the plaintiff has an absolute right to withdraw the suit against defendant No. 2 under Order 23, Rule 1 Sub -rule (1) of the Civil P. C. and the court below had, therefore, no jurisdiction to refuse the prayer. This raises a question as regards the true scope and effect of Order 23 Rule 1 Sub -rule (1) of the C. P. C. An identical point arose in the case of Basudeb Narayan Singh v. Shesh Narayan Singh, AIR 1979 Pat 73. The court reviewed the entire case -law on the point and held that the plaintiff, under Sub -rule (1) of Rule 1 of Order 23, C P. C. has the right to withdraw a suit at any stage but such right is limited to the extent that it does not result in defeating a right which has already vested in the defendant. In that case, the plaintiffs had filed a suit for partition of certain properties against three defendants. During the pendency of the suit one, Parmila Devi, asked for her impleadment on the ground that she was also entitled to a share in the property. Thereafter, she alleged waste of the properties by the other parties and prayed for the appointment of a receiver. In this connection the plaintiff gave an undertaking that they would not transfer any of the properties during the pendency of the suit. The trial court first refused her prayer for appointment of the receiver and granted her maintenance. She, however, waived the right of maintenance and prayed for appointment of receiver so as to save the property from waste and illegal transfers. The court appointed a receiver. Thus the property could not be transferred legally by any of the parties to the suit. The court held that an order of receivership had taken out the property out of the possession of the parties. By the order of the court thus the right of the defendant not to allow the plaintiffs to waste the property had vested in her and this right would be defeated if the suit was allowed to be withdrawn. Applying the principles stated above, the court held that in the circumstances, the plaintiff was not entitled to withdraw the suit under Sub -rule (1) of Order 23 Rule 1 C. P. C. It necessarily follows that in the present case, which is almost on par with the aforesaid case, the plaintiff could not be allowed to withdraw the suit against defendant No. 2 and that the decision to the contrary of the court below is legally erroneous When that be so, no decree could be passed forthwith on the basis of the compromise entered into by the plaintiff and defendants Nos. 1 and 3. All that the court could do was to record the compromise and make it a part of the record and give effect thereto only after it had finally adjudicated upon the controversy between the plaintiff on one hand and the defendant No. 2 on the other. At this stage it may be stated, in fairness to the counsel for the petitioner, that he even challenged the validity of the compormise on the ground that it was not lawful. His contention was that the compromise was entered into to defeat the claim of the defendant No. 2. I am not, however, in agreement with this argument. The compromise would bind the plaintiff and defendants Nos. 1 and 3. If the defendants Nos. 1 and 3 have conceded the plaintiff's claim, they have done so for themselves and the effect would be given to the compromise only if it is ultimately found that they had really any interest in the property which they have surrendered in favour of the plaintiff. The result, therefore, is that this revision petition succeeds. The impugned order as also any consequential order based thereon are hereby set aside. The trial court is directed to proceed with the suit in accordance with law after keeping in view the observations made above. The parties are directed to appear before the court below on 20th September, 1982.;
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