S. N. Srivastava, J. - (1.) Impugned herein is the order dated 30-11- 1988 passed by the Appellate Court in Civil Appeal No. 141 of 1981 whereby the plaintiff was permitted to withdraw suit attended with permission to institute fresh suit with cost quantified at Rs. 300/ -.
(2.) THE dispute in the instant petition relates to the land adjoining Khandhar in the east of plot Nos. 120 to 126, which according to the plaintiffs was being used as a public passage and which according to the defendants was Sahan of his house and not public passage which he annexed to his house. The dispute escalated into institution of the suit, which the plaintiff filed for the relief of permanent injunction restraining the defendants from taking possession over the land in dispute. The plaintiffs' case is that the land in dispute is ancestral property which is being used by plaintiffs' ancestors much prior to date of vesting and defendant had no right to open new Rasta for ingress and egress. The cause of action, according to the plaintiffs arose on 1-7-1979 when defendant illegally and forcefully tried to interfere with the right and possession of plaintiffs. On the other hand, defendant denied the plaintiff's case stating that the land in dispute belonged to him from the time of his ancestors and that it was never in the Khandhar but the same was always used as Sahan and the land was being used for tying animals. Various other pleas were also raised by parties in aid of their respective case and thereafter, issues were framed and the suit culminated in being dismissed by means of judgment and decree dated 7-10-1983. It would further appear that the plaintiffs went up in appeal against the judgment of dismissal. During pendency of appeal, an application came to be filed by the plaintiffs seeking withdrawal of the suit mainly on three grounds; firstly, that in the original plaint map, length and breadth of the 'gali' had not been shown, secondly, the spot position has been altered and it requires amendment in the plaint and thirdly, the Gaon Sabha was a necessary party. The appellate Court allowed the application and permitted withdrawal of suit attended with liberty to file a fresh suit. It is in the above backdrop that the present petition has come to be filed. Learned counsel for the petitioner-defendant canvassed that none of the ingredients of Order XXIII, Rule 1 (3) of the C. P. C. were attracted for application which could warrant passing of the impugned order in appeal by the appellate Court. It was further submitted that in appeal, permission to withdraw the suit may-be given in very rare cases and none of the grounds enumerated in the application makes out a case for passing of the impugned order by the appellate Court. It was further submitted that Gaon Sabha was not a necessary party in case. The learned counsel also submitted that provisions of Order VI, Rule 17 C. P. C. did permit amendment of the pleadings at any stage, which may be considered necessary for the purposes of determining the veritable questions in controversy between the parties. Ultimately, it was submitted that right to withdraw a suit is not an absolute right inasmuch as it would impinge upon the rights of defendant acquired under the decree passed in suit and therefore, plaintiff appellant could be permitted to withdraw the appeal and not the suit. In connection with the above proposition, the learned counsel relied upon the decisions reported in Ganga Saran and others v. Narayan Das, AIR 1971 All 43 and R. Rathinavel Chettiar and Anr. v. Sivaraman and others, (1999) 4 SCC 89. Per contra, Sri R. S. Asthana, learned counsel appearing for Plaintiff respondents contended that the plaintiffs were compelled to seek withdrawal of suit owing to technical flaws and therefore, the application was rightly allowed. He further contended that grounds enumerated in the application to withdraw the suit were cogent and convincing making out a case for withdrawal of the suit. He finally contended that the impugned order is apt to be affirmed. In the above perspective, the question that surfaces for consideration is whether the appellate Court could permit withdrawal of suit in appeal with liberty to file fresh suit. In connection with the aforestated question, Order XXIII Rule 1 (3) may be referred to. It being germane to the controversy involved, Order XXIII, Rule 1 (3) C. P. C. may be abstracted below: " (1) Withdrawal of suit or abandonment of part of claim. (1), (3) Where the Court is satisfied.- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. "
(3.) BEFORE proceeding with the analysis of the question involved in the Instant petition, it would be appropriate to scan the impugned order passed by the appellate Court. ....Vernacular Text Ommited.... It is eloquent from the above quoted order that the appellate Court has passed a cryptic order observing the provisions in letter without delving into its spirit. It has often been said that law is the bare bone and flesh is supplied by the judicial precedents. What are the conditions to be applied for passing the order of withdrawing suit at the appellate stage, have to be examined in the light of the precedents which have copiously been cited across the bar by both the sides.;