Mary Teacher and Others v. K.J. Varghese and Rossa

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA 1938 SA.No. 333 of 2002 (F) -----------------------------AGAINST THE JUDGMENT IN AS 61/1997 of SUB COURT, MUVATTUPUZHA DATED 19-03-2002 AGAINST THE JUDGMENT IN OS 273/1994 of MUNSIFF COURT, MUVATTUPUZHA DATED 27-09-1997 SECOND APPELLANT/L.RS OF DECEASED 1ST RESPONDENT AND RESPONDENTS 2 TO 4 IN APPEAL/L.RS OF DECEASED 1[st] DEFENDANT AND DEFENDANTS 2 TO 4: ----------------------------------------------------------------------------------------------------------------------- 1. MARY TEACHER, W/O.LATE K.J.GEORGE, KANNADAN HOUSE, NADUKANI KARA, KEERAMPARA VILLAGE. 2. SHARON GEORGE, D/O.LATE K.J. GEORGE, KANNADAN HOUSE, NADUKANI KARA, KEERAMPARA VILLAGE. 3. DEEPAK GEORGE, S/O.LATE K.J.GEORGE, KANNADAN HOUSE, NADUKANI KARA, KEERAMPARA VILLAGE. 4. KURUVILLA, S/O.JOSEPH, KANNADAN HOUSE, MALAYANKEEZHU, KOTHAMANGALAM. 5. JACOB, S/O.JOSEPH, KANNADAN HOUSE, MALAYANKEEZHU, KOTHAMANGALAM. 6. THOMAS, S/O.JOSEPH, KANNADAN HOUSE, MALAYANKEEZHU, KOTHAMANGALAM. BY ADV. SRI.S.SREEKUMAR (SENIOR) RESPONDENTS/APPELLANTS/PLAINTIFFS:- ---------------------------------------------------------------- 1. K.J.VARGHESE, AGED 52 YEARS, S/O.JOSEPH, KANNADAN, MALAYANKEEZHU KARA, KOTHAMANGALAM VILLAGE. 2. ROSSA, AGED 78 YEARS, W/O.JOSEPH, KANNADAN, MALAYANKEEZHU KARA, KOTHAMANGALAM VILLAGE. BY ADVS. SRI.P.T.ARUNKUMAR SRI.P.FAZIL SRI.A.C.THOMAS ADHIKARAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- ## **C.R.** ## **P. SOMARAJAN, J.** --------------------------------------- ## **S.A. No. 333 of 2002** ---------------------------------------- Dated this the 09[th] day of February, 2017 ## JUDGMENT Aggrieved by the judgment (order) dated 19.03.2002 in A.S. No.61 of 1997 of Sub Court, Muvattupuzha, permitting the plaintiffs to withdraw the suit in O.S.No.273 of 1994 of the Munsiff Court, Muvattupuzha, the defendants came up with this appeal. It is through an application in I.A.No.1376/2000, the plaintiffs sought permission to withdraw the original suit in O.S.No.273/1994 of Munsiff Court, Muvattupuzha in the first appellate stage. The first appellate court allowed the said application by its order dated 19.03.2002 and consequently appeal was disposed of allowing withdrawal of the suit by its order dated 19.03.2002. 2. An initial objection was raised by the learned counsel for the respondents regarding maintainability of appeal, as the order permitting withdrawal is neither a 'judgment' nor a 'decree' or an 'appealable order'. The position is well settled in **Kumari v. Prabhakaran** reported in 2012 KHC 2799, as such S.A. No. 333 of 2002 2 this appeal is not maintainable. 3. It _prima facie_ appears from the impugned order that the lower court has committed very grave mistake in exercising its jurisdiction in its correct perspective and improperly applied it while rendering the impugned order and hence amenable for supervisory jurisdiction vested with this court, hence the appeal is treated as an application under Article 227 of the Constitution of India. 4. It appears that lower court has proceeded with the matter under a wrong impression that no decree has been passed in favour of the respondents (defendants) by the trial court since the suit was dismissed. A decree dismissing the suit would operate against both the plaintiff and the defendant. In effect, when the suit was dismissed it amounts to rejection of the right, interest or title claimed by plaintiffs against the defendants. In other words, it is a decree in favour of the defendants and hence the observation made by the lower court that there is no decree against the defendants is factually and legally incorrect. 5. The effect of withdrawal of a suit after suffering a decree is elaborately considered in a decision rendered by the Apex Court in **R.Rathinavel Chettiar and another v. V.** S.A. No. 333 of 2002 3 **Sivaraman and Others** reported in J.T.1999(2) SC 468 = 1999 4 SCC 89 wherein it was held that when withdrawal is allowed it would have the effect of destroying the decree passed in the suit. In the present case, the plaintiffs have already suffered a decree by dismissal of the suit on merits. The claim raised in the suit is with respect to an easement right which was ultimately found against the plaintiffs. The suit was instituted by the plaintiffs when they were having right, title and interest over the immovable property, which is the subject matter of the suit. Subsequent alienation, transfer or sale of property would not invalidate the decree passed in the suit against the plaintiffs. The _pendente lite_ purchasers, if any, or those who are claiming under the plaintiffs are bound by the decree passed. As such, a subsequent sale of the property by the plaintiffs itself is not a ground for granting withdrawal of suit. 6. Then the question is what should be the approach of the court in dealing with an application for withdrawal of suit. There is lot of difference in the legal position applicable to withdrawal of suit at the pre-decree stage and post-decree stage. At the pre-decree stage the plaintiffs are at liberty to withdraw the suit or abandon the suit either partly or in whole S.A. No. 333 of 2002 4 except in a suit which would fall under either Order I Rule 8 CPC or Order XXXII Rules 1 to 14 CPC and the court has nothing to do with that liberty vested with the plaintiffs. But, at the post-decree stage it is fully and completely resting on the legal principles and it cannot be granted on mere asking as in the case of pre-decree stage. At the pre-decree stage, even the permission of the court is not required except in cases which would fall under Order I Rule 8 CPC or Order XXXII Rules 1 to 14 CPC, but the plaintiffs are bound by the limitation embodied under Order XXIII in bringing another suit in respect of the same subject matter. There are restrictions imposed under Order I Rule 8(4) CPC in a representative suit and under the proviso to Order XXIII Rue 1 CPC with respect to suits which would fall under Order XXXII Rules 1 to 14 CPC. But, at the post-decree stage the plaintiffs cannot unilaterally withdraw the suit without the permission of the court after suffering a decree. The normal rule is that after suffering a decree the plaintiffs cannot be permitted to withdraw the suit unless there is jurisdictional error or lack of jurisdiction and that the suit ended in dismissal on any of the said ground. Only in case of jurisdictional error and lack of jurisdiction resulting in dismissal of suit, a permission can be granted to S.A. No. 333 of 2002 5 withdraw the suit at the post-decree stage. Order XXIII CPC did not make any difference in the approach of court in the matter of withdrawal of suit at the post-decree stage and predecree stage. No doubt, the grant of leave envisaged in subrule (3) of Rule 1 is at the discretion of the court, but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. But, the question of withdrawal at the post-decree stage is fully and completely resting on the legal principles and not confined only to the mandate under Order XXIII CPC, but really restricts its application at the post-decree stage. The grounds which were available at the post-decree stage hence further stood as restricted by the application of legal principles embodied under Section 11 CPC and Order II Rule 2 CPC. The plaintiffs cannot be permitted to nullify a decree suffered by them by their actions. The only exception to the said general rule is the S.A. No. 333 of 2002 6 dismissal of the suit on the ground of lack of jurisdiction or jurisdictional error. 7. It is true that the appeal is a continuation of suit. That does not mean that whatever the legal position applicable to the parties in the trial court is squarely applicable in the first appellate court, as such the decision rendered in **Amminikutty v. George Abraham** [1987 (1) KLT 574] by this court will not have much relevance in the present case. In fact, what was done by the lower court is by destroying a decree which was rendered by the lower court on merits, on the application of plaintiffs. It is quite impermissible in law unless the same is suffered by jurisdictional error or lack of jurisdiction, as the case may be. 8. The order passed by the lower court in I.A. No.1376/2000 and consequential disposal of the appeal based on the order passed in the said I.A. permitting the plaintiffs to withdraw the suit are liable to be interfered with and I do so. Both the order of the lower court in I.A. No.1376/2000 and consequential order passed in the appeal permitting withdrawal are hereby set aside. Appeal is restored to the file. Parties shall appear before the first appellate court on 02.03.2017. The first appellate court shall proceed with the matter and S.A. No. 333 of 2002 7 dispose of the same in accordance with the law in force. No order as to costs. Appeal is disposed of accordingly. ## **P. SOMARAJAN, JUDGE** DMR/-