High Court
Legal Reasoning
Case :- FIRST APPEAL FROM ORDER No. - 444 of 2023 Appellant :- Mukesh Chand Goyal(Died) And 10 Others Respondent :- Girdhar Gopal Agrawal Counsel for Appellant :- Amit Kumar,Brij Raj Hon'ble Dinesh Pathak,J.
Legal Reasoning
1. Heard learned counsel for the appellants at the admission of the instant First Appeal From Order and perused the memo of appeal along with the appended documents. 2. Money suit amounting Rs.1 lakh with interest filed on behalf of the plaintiff-respondent has been dismissed by the trial court considering the withdrawal application (Paper no. 152-C) under Order 23 Rule 1 C.P.C. filed on his behalf. The first appellate court, on civil appeal being preferred on behalf of the plaintiff- respondent, has allowed the same remitting the matter before the trial court to decide the suit on merits, vide its judgment dated 12.12.2022 and decree dated 02.01.2023. Having been aggrieved against the remand order passed by the first appellate court, instant F.A.F.O. has been preferred on behalf of the defendants-appellants under Order 43 Rule 1 (u) of C.P.C. 3. As per plaint case, plaintiff-respondent and defendants- appellants are close relatives. In the month of June, 1990, the plaintiff-respondent has given money amounting Rs.80,000/- to defendant no. 1 to secure the amount, however, at the subsequent stage, the defendant no. 1 has refused to pay said amount. Defendants no. 2 and 3 who are the relatives of defendant no. 1 are hand in gloves with him. Defendants no. 2 and 3 have filed their written statement denying the plaintiff-respondent's allegation. The trial court, vide order dated 26.10.2004, has framed issues. It appears that when the evidence of plaintiff was closed and the defendants have filed their examination-in-chief through affidavit, the defendants no. 2 and 3 have assured the plaintiff to return the money with interest. Relying upon the assurance given by defendants no. 2 and 3, the plaintiff has moved an application dated 10.10.2007 under Order 23 Rule 1 C.P.C. (Paper no. 152-C) intending to withdraw the suit with the averments that Mukesh Chand Goyal (defendant no.1) has returned the money. On the same day i.e. 10.10.2007, another application (Paper No. 153-C) has been moved as well on behalf of the plaintiff alleging therein that the defendants no. 2 and 3 have paid the money inasmuch as defendant no. 1 is in Mumbai, therefore, compromise application, bearing signatures of the parties, is required to be filed, as such, the said compromise application may be taken up on the record. At later stage, the plaintiff has moved an application (Paper No. 157- C) supported by affidavit (Paper No. 158-C) intending to withdraw the earlier withdrawal application dated 10.10.2007 (Paper No. 152-C). Against said withdrawal application (Paper No. 157-C), defendants no. 2 and 3 have moved objection (Paper No. 165-C). The trial court, after hearing the parties, has rejected the application (Paper No. 157-C) and dismissed the suit as withdrawn on the basis of the withdrawal application dated 10.10.2007 (Paper No. 152-C) moved under Order 23 Rule 1 C.P.C. The judgment passed by the trial court has been reversed by the first appellate court and relegated the parties before the trial court to get the suit decided on merits. 4. Learned counsel for the defendants-appellants submits that as soon as withdrawal application is moved on behalf of the plaintiff, the suit will be deemed to be withdrawn automatically without passing any formal order, therefore, the subsequent withdrawal application moved by the plaintiff to withdraw the earlier application for withdrawal of suit is not maintainable in the eyes of law. It is further submitted that intending to withdraw the suit is a unilateral decision of the plaintiff, therefore, at the subsequent stage he cannot withdraw from his stand. In support of his submission he has placed reliance upon the case of Prakash Chandra Mishra and Another vs. Rajendra Kumar Gupta and Others reported in 2004 (2) AWC, 1673. 5. Having considered the submissions advanced by learned counsel for the appellants and perusal of record, as placed before this Court, prima facie, it appears that defendants no. 2 and 3 have allured to the plaintiff-respondent to move a withdrawal application (Paper No. 152-C) on the pretext that all the required money, as involved in the suit, shall be reimbursed to him by the defendant no. 1. On the assurance given by defendants no. 2 and 3, the plaintiff-respondent has allegedly moved the withdrawal application under Order 23 Rule 1 of C.P.C. (Paper No. 152-C) with an averment that defendant no. 1-Mukesh Chand Goyal has paid money to the plaintiff. On the same day, simultaneously, another application (Paper No. 153-C) as well has been moved alleging the intention of compromise between the parties, as such, prayer has been made before the court to take the compromise application, bearing signatures of the parties, on the record. The first appellate court in deciding the civil appeal has emphasized the intention of the plaintiff to withdraw the suit on the basis of compromise took place between the parties. Conjoint reading of Papers No. 152-C and 153-C indicates the intention of the plaintiff that he is intending to withdraw the suit on the basis of the compromise took place between the parties under which he has been paid the required money by the defendant no. 1 through defendants no. 2 and 3. In this backdrop of the facts, moving a withdrawal application at the behest of the plaintiff cannot be said to be his unilateral action intending to withdraw the suit, rather suit was intended to be withdrawn on the basis of the compromise took place between the parties. Paper No. 153-C clarifies the intention of the plaintiff to take the copy of compromise bearing the signatures of the parties on the record. The first appellate court has discussed the matter in detail qua intention of the plaintiff to move an application (Paper No. 152-C) which cannot be said to be an independent act rather same depends on the event of filing a compromise application bearing the signatures of the parties. Moreover, subsequent withdrawal application (Paper No. 157-C) explicitly averred the eventuality of understanding took place between both the parties which propelled the plaintiff to move a withdrawal application. In application (Paper No. 157-C), the plaintiff has made clear that money which has been promised to be paid to him by defendants no. 2 and 3 has not been fulfilled. It is further averred in the application that defendant no. 1 never visited Aligarh to pay the money. He has also questioned the moving of applications (Paper Nos. 152-C and 153-C) on his behalf which was in fact filed by defendants no. 2 and 3 by persuading the plaintiff. 6. I am in agreement with the finding returned by the first appellate court that the suit filed on behalf of the plaintiff has not attained finality. Even decision of suit on the basis of the compromise has not been given effect to, rather, the suit was dismissed on the lame excuses of filing a withdrawal application at the behest of the plaintiff whereas he was intended to withdraw the suit on the basis of compromise which is a result of bilateral action and cannot be said to be an unilateral action at the part of the plaintiff alone. I fail to understand as to why the defendants are escaping themselves to adduce evidence and put their defence before the trial court showing their bona fides qua payment of money as involved in the instant suit. Protracting the lis up to this juncture on the trivial issue of withdrawal of suit, which prima facie appears to be questionable, shows the mala fide intentions of the defendants who wants to protract the lis and avoid the court proceeding by adopting mischievous attitude. Record reveals that the plaintiff is trying his best to get his money back since June 1990, however, year 2023 is going on and the plaintiff is still itinerant for justice. Since last about 33 years the plaintiff has been forced to indulge in litigation to get his money back.In Original Suit, pleadings of the parties are already completed and the evidence of defendants is going on, after conclusion of the plaintiff's evidence, and they have full opportunity to say their version before the trial court qua payment of money, if any, made to be plaintiff. Protracting the lis since long on one pretext or another is not justifiable at the part of the defendants. The case of Prakash Chandra Mishra (Supra) as relied upon by learned counsel for the appellants is not fully applicable in the instant matter. The facts and circumstances of the cited case is slightly different than in the given circumstances of the present matter. In my considered opinion, Paper Nos. 152-C cannot be read in isolation for limited purposes to withdraw the suit. Event of withdrawal was conditional based on compromise with promise to return the money in question which can easily be defined to be a bilateral act, therefore, Paper Nos. 152-C and 153- C cannot be said to be an unilateral action at the part of the plaintiff-respondent to withdraw the suit. Detailed discussion has already been made in the preceding paragraphs. 7. In this conspectus as above, I do not find any justifiable ground to interfere in the remand order under challenge. On the ground of technicalities the plaintiff-respondent cannot be deprived off from his legal right to get his money back from the defendants. Even otherwise, there is nothing on record to demonstrate to as to how defendants-appellants are prejudiced, or if there is any miscarriage of justice caused to the appellant, owing to the remand order passed by the first appellate court in civil appeal preferred on behalf of the plaintiff. As such, instant F.A.F.O., being devoid on merits and misconceived, is dismissed with no order as to costs. Order Date :- 24.3.2023 VR Digitally signed by :- VIBHA RATAN High Court of Judicature at Allahabad