S. Dattatreya v. S. Ramulu & Ors.

Order

The Civil Revision Petition is directed against the order dated 02-11-2010 in I.A.No.802 of 2010 in O.S.No.40 of 2006 on the file of the Court of I Additional District Judge, Mahabubnagar,

refusing the request of the plaintiff under Order 23 Rule 1 sub-rule (3) read with Section 151 of the Code of Civil Procedure to permit him to withdraw the suit with liberty to file a fresh comprehensive suit. The plaintiff, who filed O.S.No.18 of 2002 renumbered as O.S.No.40 of 2006, for partition against his deceased elder brother, was also facing another suit filed by the said brother for partition in O.S.No.2 of 2004 pending before the same Court. The claim of the plaintiff for partition of the plaint schedule properties in his suit is resisted by his brother claiming, among other things, some properties to be not liable for partition and some other properties among them to have been alienated. The suit was resisted on the ground of non-joinder of necessary parties/the alienees. The suit of the brother was resisted by the plaintiff claiming that the properties of the plaint schedule in that suit included his self-acquired properties in Goa and his self-acquired movable properties, while not including the ancestral joint family properties including the agricultural lands, houses and shops, which are the subject matter of his suit. Both the suits were clubbed and after settlement of issues in the suits, the trial had commenced with the chief-examination of PW.1 being filed and some documents being marked. At this stage, after the disposal of the Civil Revision Petition against the appointment of an Advocate Commissioner for cross-examining the plaintiff, this petition came to be filed. The primary ground on which the plaintiff is seeking the permission requested is about his earlier ignorance about the details of the gift deeds and sale deeds executed by his brother in the year 2000 and the further alienations made by one of the alienees in favour of two more persons in 2010 claiming that on gathering the information, he found the alienees to be necessary parties and he also found the necessity of amending the plaint schedule in O.S.No.40 of 2006 to make the properties to be identifiable with clarity. The request was resisted by the legal representatives of the deceased brother of the plaintiff claiming that the belated application is intended to drag on the litigation and is also intended to fill up the lacunae in O.S.No.40 of 2006, which is impermissible. In the impugned order, the trial Court was of the opinion that in the suit pending since 2002 and being contested since then, any such permission does not appear just or appropriate, more so, when the other suit filed by the brother against the plaintiff is pending. The trial Court considered the plaintiff to be intending to drag on the proceedings for reasons best known to him and considered any judicious exercise of discretion to be unavailable to the plaintiff on the facts and circumstances of the case. The unsuccessful plaintiff, therefore, is before this Court claiming that the discretionary jurisdiction was not properly and judiciously exercised by the trail Court and the disadvantages of the plaintiff, who left for Goa immediately after completing intermediate and the consequent ignorance about the details of properties were not properly appreciated. The plaintiff contended that the absence of full details and description will make passing of any effective final decree very difficult and the plaintiff also pleaded that mere clubbing of suits is not a bar for permitting him to withdraw his suit. Proceeding with O.S.No.2 of 2004 even if O.S.No.40 of 2006 is withdrawn is not barred and the plaintiff had no intention of dragging on the proceedings. He, therefore, desired the impugned order to be reversed. Sri K. Someswara Kumar, learned counsel for the revision petitioner relied on Pillakathuku Subbarathnam and another v. Executive Officer, Polathala Malleswaraswamy Temple, Kadapa District and others[1], wherein a learned Judge of this Court considered the expression “sufficient grounds” in Order 23 Rule-1 sub-rule (3) to be liable to be considered liberally depending upon facts and circumstances of given case. The learned Judge recognizes that it is clear that it is within the discretion of the Court either to permit the withdrawal or to refuse the withdrawal, while after granting permission to withdraw, refusal of liberty to institute another suit may not be justified. The learned counsel contended the principles applied facts and circumstances would entitle the plaintiff to have the relief. Sri B. Muralidhar, learned counsel for the contesting respondents defended the impugned order with reference to the pleadings of the parties and particularly relying on the pleadings which made it clear to the plaintiff even by 2002-2004 about some of the properties having been alienated by the brother of the plaintiff much before the pleadings and the inaction of the plaintiff thereafter till this application. The point for consideration is whether the trial Court has exercised its judicial discretion appropriately and reasonably in refusing the permission requested? In O.S.No.40 of 2006 itself the plaintiff stated even originally in the plaint that the 1st defendant therein started screening away all the income of the joint family and started creating some sham, nominal and forged documents in favour of his henchmen to knock away the suit schedule properties, which are not valid and binding on the plaintiff. It is also stated that the 1st defendant even filed a caveat showing all the properties as his self-acquired properties. Even in the written statement originally filed by the 1st defendant dated 08-01-2003 the 1st defendant disputed the character of all the properties as joint family properties, alleged some other properties also to be subject to partition and specified that the suit shops situated at Marikal have been sold to various persons. When the shops were thus specifically stated to have been alienated even before the suit, the plaintiff should have exercised reasonable diligence in knowing the details of such alienations. Against the claim of his brother in O.S.No.2 of 2004 for partition of various properties, the plaintiff himself had given specific schedules of properties attached the written statement describing the self-acquired properties of the plaintiff and the ancestral properties/joint family properties liable for partition, apart from stating in the written statement about the incorrectness of pleas of his brother and it cannot be in dispute that the properties said to have been alienated by the 1st defendant in O.S.No.40 of 2006 in the year 2000 either by way of gift deeds or by way of sale deeds were covered by the schedules attached to the plaint in O.S.No.40 of 2006 and the written statement in O.S.No.2 of 2004. If so, more particularly, in the light of the defence taken by the 1st defendant in O.S.No.40 of 2006, the plaintiff should have been diligent in ascertaining the particulars of the alienations made by the 1st defendant at any time or any alienations being made by the transferees from the 1st defendant in order to take appropriate steps in the suit pending before the Court. Having remained silent since then till the commencement of the trial, the plaintiff, without any ostensible justification, seeks to put the clock back by seeking to file another suit at this distance of time, which itself will complicate the adjudication of O.S.No.2 of 2004, with which in the opinion of the plaintiff the Court can proceed with notwithstanding any new suit. Interests of justice will be better served by adopting such a course as would expedite a comprehensive adjudication of the dispute between the parties at the earliest and therefore, if the trial Court had refused to exercise discretion for granting a permission for withdrawal and filing of a fresh suit, the same cannot be considered incorrect or inappropriate. When all the properties in question are already the subject matter of the two suits, how can any fresh suit be more comprehensive is difficult to comprehend and if it were only to claim the relief of partition in respect of those properties said to have been alienated, the same can still be pursued even in the pending suit by the plaintiff. If the plaintiff feels that impleading of alienees from the 1st defendant and any alienees from such alienees of items of properties becomes necessary for adjudication of the dispute, it is always open for him to approach the trial Court for the purpose with an appropriate application, if he is so advised, which will be considered by the trial Court on its own merits and subject to the rights of the proposed parties to defend themselves against such impleadment or any claims against them on any ground including any question of limitation. Similarly, if the plaintiff feels that the absence of specification of boundaries in the schedules attached to the plaint or the written statement in either suit will make the further proceedings for passing of a final decree difficult in case of his success, he can always seek permission of the trial Court to the schedules by including specific and complete description of the properties involved in the schedules by way of amendment, which request also will be considered and decided by the trail Court in accordance with law, if such an amendment is permissible. The plaintiff cannot, therefore, put the opposite parties to such inconvenience at this stage, of having to face a fresh suit again at this distance of time, more so, after the death of the brother himself when whatever remedies he desires to seek can be pursued in the pending suit itself. Hence, I find no reasons to interfere with the impugned order in exercise of restricted revisional jurisdiction of this Court. In the result, the Civil Revision Petition is dismissed without costs subject to the above observations. No part of this order shall influence the determination on merits in accordance with law of any request of the plaintiff for either amendment of pleadings or for impleadment of parties. _____________________ G. BHAVANI PRASAD, J Date: 05-08-2011 Ksn [1] 2005(5) ALD 75