Mere Filing Application Or Making Statement About Withdrawal By Plaintiff Doesn't By Itself Amount To Dismissal Of Suit: Himachal Pradesh High Court

The Himachal Pradesh High Court has held that mere filing an Application or making statement about compromise and withdrawal by the Plaintiff doesn't, by itself, amount to dismissal of the suit.

The Court was considering a Petition assailing the order of the Civil Judge, in terms whereof, an Application filed by Defendant No.2 before the Trial Court, under Order XXIII, Rule 3 of the Code of Civil Procedure seeking the dismissal of the Suit filed by the Plaintiff in light of comprise and the statement of the Plaintiff recorded in the Court was allowed.

The Bench of Justice Ajay Mohan Goel observed, "This Court is further of the view that looking into the facts of this case, as there was some time period in between the filing of the application at the first instance by the plaintiff as well as the recording of his statement, and passing of impugned order, which was on account of the act of the Court itself which in its wisdom, thought it proper to refer the matter to the learned Lok Adalat, thereafter, once the matter was not mutually settled before the learned Lok Adalat, because none appeared and the matter came back to the regular Court, then if the plaintiff had expressed his intent that he wanted to continue the case on merit, its natural consequence was that there was an implied withdrawal of the application as well as the statement made by the applicant and the Court was duty bound to decide the suit on merit."

The Petitioner was represented by Advocate Surya Chauhan, while the Respondent was represented by Additional Advocate General Pushpinder Jaswal.

Facts of the Case

The Petitioner-Plaintiff filed a Suit for Declaration, that he was the exclusive owner in possession of the Suit Property and the impugned alienation effected by Defendant No.2 thereof, in favour of Defendant No.1, vide registered sale deed, was wrong, illegal, void ab-initio, with further consequential relief of permanent injunction, restraining the Defendants from changing the nature and character etc. of the suit property.

During the pendency of the Suit, an Application was filed, under Section 151 of the CPC, with the prayer that the case be taken up on the said date and for the withdrawal of the Suit. Though the Application is not on record, but copy thereof was made available for the perusal of the Court by the Counsel for the Respondents. It was mentioned in the Application that the case was listed but as the matter stood amicably settled and the Plaintiff was not interested in pursuing the Suit and the Application be allowed and the suit be taken up during the course of the day and be ordered to be dismissed as withdrawn.

Thereafter, before formal order of dismissal of the Suit on the basis of the Application and Statement of the Plaintiff could have been passed by the Trial Court, the Plaintiff stated that he did not intend to withdraw the Suit and in this backdrop that the Application was filed by Defendant No.2, for the dismissal of the Suit, on the basis of the Application filed by the Plaintiff to withdraw the same, as well his statement recorded.

In terms of the impugned order, the Trial Court allowed the Application and held that every Plaintiff has the right to withdraw the suit unconditionally and withdrawal would be complete, as soon as the Plaintiff makes his statement and the withdrawal of the suit is not dependent upon the order of the Court.

Reasoning By Court 

The Court was of the view that though in terms of Order XXIII of the CPC, the Plaintiff can at any time, after the institution of a Suit, abandon his Suit or abandon a part of his claim, however, this provision cannot be construed as if, in case, an Application is filed by the Plaintiff in terms of the provisions of Order XXIII, then straight away, the case file has to be assigned to the record room.

"Judicial order has to be passed by the Court concerned on the basis of either the statement of the Plaintiff or the application filed by the plaintiff and it is only after a formal order is passed by the Court that the application or the statement of the plaintiff comes into effect", the Court observed.

It remarked that a Court of law is not at the same footing as the Defendant in such like matters and obviously, the Defendant would like to take advantage of any such Application filed by the Plaintiff or statement made by the Plaintiff, but then the Court has to apply its judicial mind and has to take into consideration the fact that if the Plaintiff who had filed such an Application, subsequently wants the Court to decide the case on merit, the Court cannot shy away and shun its duty to decide the case on merit and hide behind such an Application or statement made by the Plaintiff and dismiss the case of the Plaintiff without adjudication on merit, as has been done in the present case.

"The provisions of Order XXIII of the CPC are to be voluntarily exercised by the plaintiff. The Court cannot force the plaintiff to withdraw a case, simply because at an earlier stage the plaintiff might have filed such an application or even may have recorded his or her statement to the effect that the plaintiff intends to withdraw the suit, if subsequently, the intent of the plaintiff changes for some reason. Of course, maybe during the course of the trial, an adverse inference can be drawn by the Trial Court of the said conduct of the plaintiff, but then this does not give a license to the Trial Court to dismiss the suit, as has been done in the present case. This Court does not agree with the observation of the learned Trial Court that dismissal is complete with the filing of the application. If that is so, then why did learned Trial Court refer the matter to Lok Adalat", the Court observed.

The Petition was accordingly allowed.

Cause Title: Mangat Ram (deceased) through his Lrs. namely Tarsem Lal and others. vs. State of Himachal Pradesh and others

Appearances:

Petitioner- Advocate Surya Chauhan

Respondent- Additional Advocate General Pushpinder Jaswal, Advocate Parmod Singh Thakur

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