2017 (11) TMI 1863

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....set out the facts infra. The facts set out hereinbelow are taken from the SLP paper book. 4) The appellant is the plaintiff whereas respondent Nos.1 to 4 are defendant Nos.1 to 4 and respondent No.5 is plaintiff No.2 as proforma respondent. 5) The dispute in this case is essentially between the appellant and respondent Nos.1 to 4 and relates to a land bearing number 629-A/0.0320 Hect. and 629-B/1.5820 hect. situated in village - Asyoli Pargana, Bangar, Tehsil and District Hardoi (UP) (hereinafter referred to as "suit land"). 6) The suit land claimed to be originally belonged to one Shri Jinta s/o Dhamma. He sold it to two persons - Abhishek Singh and Ajit Pratap Singh. Abhishek Singh then claimed to have sold his half share to the appellant on 25.02.2003 whereas Ajit Pratap Singh had already sold his half share to one Khanulal Mishra on 15.11.2000. Khanulal then claimed to have sold his 1/4th share out of his share to the appellant and remaining half share to Ajit Pratap Singh on 04.06.2003. In this way, the appellant claimed to become the owner of the suit land to the extent of 3/4th and remaining 1/4th fell to the share of Ajit Pratap Singh. The mutation of the names of ....

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....d room after necessary proceeding." 11) Respondent No.1 felt aggrieved and filed revision under Section 115 of the Code before the Additional District Judge, Hardoi. By order dated 05.08.2008, the Additional District Judge dismissed the revision and upheld the order of the Trial Court. 12) Respondent No.1 felt aggrieved and filed writ petition (W.P. No.5453/2008) in the High Court at Allahabad against the order of the Additional District Judge under Article 227 of the Constitution of India. By order dated 28.05.2010, the High Court allowed the respondent's writ petition, set aside the orders of Additional District Judge and the Trial Court and also directed the appellant (plaintiff) to place respondent No.1 (defendant No.1) in possession of the suit land. 13) It is against this order, the plaintiff felt aggrieved and filed this appeal by way of special leave in this Court. 14) Heard Mr. Pradeep Kant, learned senior counsel for the appellant and Mr. Anurag Kishore, Mr. Nikhil Jain and Mr. Rajesh Kumar, learned counsel for the respondents. 15) Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the ....

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....ed to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs." 19) Reading of Order XXIII Rule 1 would go to show that the plaintiff has a right to file an application to abandon his suit or part thereof at any time after its filing. However, if the permission to withdraw the suit, whether full or part thereof is granted under Rule 1(3), then the plaintiff would be granted liberty to institute a fresh suit on terms as the Court may deem fit and proper to impose on the plaintiff in respect of the same subject matter of the suit or part thereof. 20) If the permission to withdraw the suit is granted under sub-rule(1) of Rule 1 read with sub-rule (4)(a) or (b) then in such event, the plaintiff would only be liable to pay cost to the defendant. However, in such situatio....

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....ule 1. 27) Now coming to the facts of the case, we are of the considered opinion that the Trial Court and the Revision Court (A.D.J) were justified in permitting the appellant (plaintiff) to withdraw the suit under sub-rule (1) of Rule 1. In other words, since the appellant had applied for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was justified in permitting withdrawal of the suit subject to the appellant paying cost of Rs. 350/- to respondent No.1 (defendant No.1). Such order, in our view, was in conformity with sub-rule (3) of Rule 1 and was rightly upheld by the Revision Court. 28) The High Court, however, committed jurisdictional error in allowing the defendant's writ petition by finding fault in the orders of the Trial Court and Revision Court and giving directions to the plaintiff to place defendant No.1 in possession of the suit land without there being any basis whatsoever. 29) As mentioned above, the High Court should have seen that the scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the ....