Second Appeal No. 644 of 2004. Case: Gurudayalsing Mehersing Bindra (since deceased), through Legal Representatives Vs Basant Singh Mehersingh Bindra (since deceased) through his Legal Representatives. High Court of Bombay (India)
| Case Number | Second Appeal No. 644 of 2004 |
| Counsel | For Appellant: Smt. A. N. Ansari, Adv. and For Respondents: P. R. Katneshwarkar, A. K. Gawali, P. F. Patni, Advs. |
| Judges | T. V. Nalawade, J. |
| Issue | Benami Transactions (Prohibition) Act (45 of 1988) - Section 2; Hindu Women's Right to Property Act (18 of 1937) - Section 3; Hindu Succession Act (30 of 1956) - Section 14 |
| Citation | AIR 2015 BOM 15 |
| Judgement Date | April 21, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
-
The appeals are filed against judgment and decree of Regular Civil Appeal No. 39/2000 and 42/2000 which were pending in the Court of the IVth Ad-hoc District Judge, Aurangabad. Special Civil Suit No. 50 of 1971 was filed by Basantsing, appellant from second proceeding for relief of partition and separate possession of movable and immovable properties. The suit was partly decreed in his favour by the trial Court. Both, the plaintiff and defendant No. 1 (appellant from the first proceeding) challenged the judgment and decree of the trial Court by filing aforesaid two civil appeals in District Court. The District Court has confirmed the decision of the trial Court. Defendant No. 2 is the sister of the appellants from both the proceeding. Heard learned counsel of all the sides.
-
In these appeals original plaintiff and defendant No. 1, the brothers have filed compromise document and they have prayed for disposal of both the appeals and also the original suit as withdrawn. This Court has passed order to the effect that the prayer made by the plaintiff and defendant No. 1 will be considered at the time of consideration of both the appeals on merits. In view of this order, learned counsels for all the sides were heard. The trial Court has declared that defendant No. 2, sister, is entitled to one-third share in the three properties which are mentioned in the operative part of the judgment delivered by the trial Court.
-
For withdrawal of the suit, provisions like Order 23, Rule 1 of the Code of Civil Procedure need to be used. For withdrawal of the suit, ordinarily no permission of Court is necessary if plaintiff has no desire to have liberty to file fresh suit. Ordinarily that permission is given on the grounds mentioned in Order 23, Rule 1 of the CPC. From the grounds it can be said that it is ordinarily to be used before decision of the suit. Though there is such provision, when the suit is filed for relief of partition, the things are different. In such a suit plaintiff and defendant are party of equal status. In the case reported as 2003 CJ (SC) 195: (AIR 2009 SC 1754) (Chandramohan Ram-chandra Patil v. Bapu Koyappa Patil) at para 13 the Apex Court has made following observations:
"13. This argument has no merit. In a suit for partition, plaintiff and defendants are parties of equal status. If the right of partition has been recognised and upheld by the Court, merely because only some of the plaintiffs had appealed and not all, the Court was not powerless. It could invoke provisions of Order 41, Rule 4 read with Order 41, Rule 33 of Code of Civil Procedure. The object of Order 41, Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant. (See Ratanlal v. Firm Lalman Das, AIR 1970 SC 108).
-
In view of the observations made by the Apex Court in the case cited supra, this Court has no hesitation to hold that the plaintiff from partition suit has no absolute right to withdraw the suit even though the suit has not reached stage of decision. In the present case there is decree given by the trial Court not only against the plaintiff but against defendant No. 1. The Trial Court has declared that in the three properties, defendant No. 2 has one-third share. Thus, the defendant No. 2 can get benefit of the judgment and decree. The appeal is continuation of suit and so withdrawal of appeal in such a case is also not an absolute right of plaintiff. Further, when withdrawal would deprive a defendant to get fruits of the decree given by the trial Court, the appellate Court is not expected to permit the suit to be withdrawn at appellate stage. This Court has gone through the terms of settlement between the two brothers and this Court has no hesitation to observe that the two brothers want to deprive the defendant No. 2, sister, of the benefits given to her by the trial Court. They want to prevent defendant No. 2 from claiming relief through original plaintiff in Second Appeal No. 177 of 2005. In view of the aforesaid position of law, this Court has no hesitation to hold that the prayer of giving permission to withdraw the suit made by the plaintiff cannot be accepted.
-
The submissions made for withdrawal of Second Appeal No. 644 of 2004 by original defendant No. 1 needs to be looked from different angle. Defendant No. 2 has not filed cross-objection in this appeal. On this point following cases need to be referred:
(1) (1982) 1 SCC 232: (AIR 1982 SC 98) (Choudhary Sahu v. State of Bihar);
(2) (2010) 7 SCC 717: (AIR 2010 SC 3025) (Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak);
(3) 2004 CJ (Bom) 982 (Porbuko Uma Mandrekar v. Wencesslay Alex D'silva).
-
Law is summed up by the Apex Court in the case of Choudhary Sahu (AIR 1982 SC 98) (supra) at paragraphs 12 to 14 and these paragraphs contain relevant facts also. The Apex Court has discussed the provisions of Order 41, Rule 33 of the Code of Civil Procedure and the observations are made at paragraphs 12 to 14 as under:
12. The object of this Rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from.
13. Ordinarily, the power conferred by this Rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this Rule the court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the law of limitation or the law of court fees etc.
14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under Order 41, Rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.
-
The appellant from Second Appeal No. 644 of 2004 was defendant No. 1 in the suit and decree at least in respect of three properties is given against him. That decree is in favour of the plaintiff and defendant No. 2. He has challenged only that part of the decision. As withdrawal of Second Appeal No. 644 of 2004 will amount to acceptance of this decision of the trial Court, such withdrawal can be allowed. So, the prayer made by the defendant No. 1 to allow him to withdraw Second Appeal No. 644 of 2004 is allowed. In the result, the decision given by the trial Court to that extent becomes final as against defendant No. 1. Thus, this Court is expected to decide only Second Appeal No. 177 of 2005 filed by original plaintiff on merits. This appeal is continuation of the suit and so all the claims made by the plaintiff need to be considered.
-
The parties are Sikh/Hindu. Plaintiff Basant Singh and defendant No. 1 Gurudayal Singh are sons of Laxman Kaur and...
To continue reading
Request your trial