CRP PD/1417/2003 of SUBBAN,S/O.RENGASAMY Vs VARADARAJAN on 31 December 2003

:COMMON ORDER

The defendants 1 and 2 in O.S. No. 361 of 1994 are the revisionpetitioners in CRP No. 1421 of 2003. The first Plaintiff in the said suit isthe revision petitioner in CRP No. 1417 & 1418 of 2003. The Plaintiffs havefiled the suit for declaration to declare that the first plaintiff is entitledto take his tractors, lorries and bullock carts through the suit cart trackportion marked as ABCDEFGH in yellow colour running in the suit S.No. 159 ofBommanpatti Village, Thiruchengode Taluk to reach his portion of lands situatein the suit S.NO.159 shown in the plaint rough plan and for other reliefs.

2. Pending suit, the plaintiffs filed I.A. No. 1124 of 1998 to withdraw the suit as against the defendants 3 to 5 which was opposed by thedefendants 3 to 5. Later, the defendants 3 to 5 filed I.A. No. 489 of 2000seeking permission of the Court for filing additional written statement/crossobjection. The Plaintiffs filed another I.A. No. 1 162 of 2002 forrecording the compromise entered into between them with defendants 1 and 2.All the applications were taken up for hearing together by the trial court,common arguments were advanced by the counsel for both sides, however, thetrial court, on 25-11-2002 passed separate orders dismissing the applicationI.A. No. 1124 of 1998 and I.A. No. 1162 of 2002 and allowed theapplication I.A. No. 489 of 2 000 as prayed for with costs. Aggrieved bythe orders passed in the above said three applications, the above revisionsare filed.

3. The learned counsel appearing for both sides in the above revisions advanced common arguments, hence this common order is passed. Forthe sake of convenience, the parties are referred as arrayed in the suit.

4. CRP No. 1417 of 2003 is directed against the order allowing the application I.A. No. 489 of 2000 which was filed by the defendants 3 to5 under Order 8 Rule 9 CPC seeking permission of the Court to receiveadditional written statement. The reasons adduced by the defendants 3 to 5

was that the suit was filed in respect of the cart track existing in SurveyNo.159 and in the said cart track they and the other defendants namelydefendants 1 and 2 have a right to use. They have jointly opposed theplaintiffs from using the said cart track. Later the defendants 1 and 2 havecolluded with the plaintiffs and created an alleged compromise with anintention to deprive of the defendants 1 and 2, hence the additional writtenstatement is warranted. The trial court allowed the said application on theground that 1 + cents land belonged to the defendants 3 to 5 is part andparcel of 0.91 cents allegedly belonged to the defendants 1 and 2 wherein thecart track is located as such the additional written statement is required foreffective adjudication. The trial court also permitted the defendants 3 to 5to make a counter claim along with the written statement and accordingly acourt fee of Rs.61/- was also paid by them.

5. CRP No. 1418 of 2003 relates to I.A. No. 1124 of 1998 which was filed by the Plaintiffs under Order 23 Rule 1 CPC seeking permission ofthe Court to withdraw the suit in O.S. No. 361 of 1994 in so far as thedefendants 3 to 5 are concerned. It is stated in the said I.A. that afterfiling the suit, the Plaintiffs and defendants 1 and 2 have entered into acompromise and laid a new cart track in their lands after removing thestanding trees thereon as such the defendants 3 to 5 are not necessaryparties. The trial court dismissed the said application on the ground that nonew cart track was laid as alleged and the cart track in dispute is runningthrough their land hence they are necessary parties.

6. CRP No. 1421 of 2003 is directed against the Order passed in

I.A. No. 1162 of 2002 filed by the plaintiffs for recording compromise onthe ground that after filing the suit, the plaintiffs and defendants 1 and 2have laid a new cart track after removing the standing trees and entered intoa compromise and prayed the Court to pass a decree in terms of the compromise.The said I.A. was dismissed by the trial court on the ground that I.A. No.489 of 2000 was allowed and I.A. No. 1124 of 1998 was dismissed, hence thecompromise cannot be recorded until all the defendants file a compromise memoduly signed.

7. The Plaintiffs filed I.A. No.1124 of 1998 to withdraw the suit against the defendants 3 to 5, which were opposed by the defendants 3 to5 by filing necessary counter. The defendants 3 to 5 thereafter filed I.A.No. 489 of 2000 for reception of additional written statement/crossobjection. Subsequently, the plaintiffs filed I.A. No. 1162 of 2002 forrecording compromise. Hence, it is relevant to look into the correspondingprovisions of law governing the issues in all the three interim applications.8. The relevant provision to withdraw the suit is Order 23 Rule 1(1 ) which runs as follows:- "Order 23 Rule 1. Withdrawal of suit or abandonment of part of claim. - (1)At any time after the institution of a suit, the plaintiff may as against allor any of the defendants abandon his suit or abandon a part of his claim:Provided that where the plaintiff is a minor or other person to whomthe provisions contained in Rules 1 to 14 of Order XXXII extend, neither thesuit nor any part of the claim shall be abandoned without the leave of the Court.

9. Filing of additional written statement is governed by Order 8Rule 6-A, 6-D and 9 which runs as follows:- "Order VIII Rule 6-A. Counter claim by Defendant: (1) A defendant in a suitmay, in addition to his right of pleading a set off under Rule 6, by way ofcounter claim against the claim of the plaintiff, any right or claim inrespect of a cause of action accruing to the defendant against the plaintiffeither before or after the filing of the suit but before the defendant hasdelivered his defence or before the time limited for delivering his defencehas expired,whether such counter claim is in the nature of a claim for damagesor not.

Provided that such counter-claim shall not exceed the pecuniary limitsof the jurisdiction of the Court.

(2) Such counter claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim.

` (3) The Plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may befixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed bythe rules applicable to plaints.

6-D. Effect of discontinuance of suit - If in any case in which thedefendant sets up a counter-claim, the suit of the plaintiff is stayed,discontinued or dismissed, the counter-claim may nevertheless be proceededwith.

9. Subsequent pleadings. - No pleading subsequent to the writtenstatement of a defendant other than by way of defence to a set off (orcounter-claim) shall be presented except by the leave of the Court and uponsuch terms as the Court thinks fit, but the Court may at any time require awritten statement or additional written statement from any of the parties andfix a time for presenting the same.

10. The relevant provision relating to recording of compromise isOrder 23 Rule 3 CPC which runs as follows:- "Compromise of suit. - Where it is proved to the satisfaction of theCourt that a suit has been adjusted wholly or in part by any lawful agreementor compromise, in writing and signed by the parties or where the defendantsatisfies the plaintiff in respect of the whole or any part of thesubject-matter of the suit,the Court shall order such agreement, compromise orsatisfaction to be recorded, and shall pass a decree in accordance therewithso far as it relates to the parties to the suit, whether or not the subjectmatter of the agreement, compromise or satisfaction is the same as the subjectmatter of the suit.

Provided that where it is alleged by one party and denied by the otherthan an adjustment or satisfaction has been arrived at, the Court shall decidethe question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit togrant such adjournment.

11. Under Order 23 Rule 1 CPC, a plaintiff can abandon a suit or abandon part of his claim as a matter of right without the permission of theCourt. In such case, he will be precluded from suing again on the same causeof action. He cannot abandon a suit or abandon part of his claim reserving tohimself a right to bring a fresh suit. The question of permission comes inonly when the plaintiff seeks permission to sue afresh on the same cause ofaction. Different consideration may arise where a set-off may have beenclaimed under Order 8 CPC or a counter-claim may have been filed, ifpermissible by the procedural law applicable to the proceedings governing thesuit.

12. In the decision reported in (M/s. Hulas Rai Baij Nath Vs.

Firm K.B. Bass and Co.) AIR 1968 Supreme Court 111, in para-2 it was heldthat there is no provision in the Code of Civil Procedure, which requires theCourt to refuse permission to withdraw the suit, but it is possible indifferent consideration where a set-off have been claimed under Order 8 CPC ora counter-claim have been filed, if permissible by the procedural lawapplicable to the proceedings governing the suit.

13. In the case on hand, the defendants 3 to 5 have filed I.A.

No. 4 89 of 2000 under Order 8 Rule 9 CPC after filing the written statement.Rule 6-A of Order 8 confers a statutory defence of set-off to a plaintiff'saction. A counter-claim is substantially a crossobjection. A set-off is ananswer to the plaintiff's claim, wholly or protanto. The defendant may eitherbefore or after filing of the suit, but before he has delivered his defence orbefore the time limited for delivering his defence has expired file hiscounter-claim. In such an event, a counter-claim is treated as a plaint andis governed by the Rules applicable to Plaint.

14. Under Rule 6-D of Order 8 CPC, even if the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim maynevertheless be proceeded with as in the case of a counter claim, writtenstatement is really in the nature of a plaint. In such event, if theplaintiff's suit is not pressed or given up or withdrawn or breaks down forany reason whatsoever, the defendant has still a right to get a decree of acounter-claim as claimed in the written statement. If a defendant want toenjoy such right, he is allowed to make his counter-claim either before orafter filing of the suit, but before he has delivered his defence or beforethe time limited for delivering his defence has expired.

15. In this case, the defendants 3 to 5 have filed the written statement on 22-01-1996. After lapse of about four years from the date offiling the written statement, they have filed the application I.A. No. 489of 2000 without proper explanation for such delay, which is against theprovisions of Rule 6-A of Order 8. The trial court erroneously allowed thesaid application without considering the above said aspects.

16. A conjoint reading of Order 23 Rule 1 (1) and Order 8 Rule 6-A, 6-D and 9 CPC makes it clear that the plaintiff cannot be prevented fromwithdrawing the suit, if the counter-claim / set off has been filed in terms of the procedural law. In this case, the counter-claim is not filed in termsof the procedural law, hence the trial court is not correct in dismissingapplication I.A. No.1124 of 1998 filed by the plaintiffs to withdraw the suitas against the defendants 3 to 5.

17. The Plaintiffs and defendants 1 and 2 said to have entered into compromise and they sought for a decree in terms of the compromise, whichresulted in filing the I.A.No. 1162 of 2002. It is also their case thatafter the suit, they have laid a new cart track in their land, which iscomprised in Survey No.159. The trial court dismissed the said application onthe ground that the defendants 3 to 5 have not signed the compromisememo,besides that I.A.No. 489 of 2000 and I.A. No.1124 of 1998 weredismissed. No doubt, under Order 23 Rule 3 CPC, the compromise must bebetween the parties t o the litigation. A compromise to which some of theparties to a suit alone are parties is not necessarily invalid. A compromisebetween some parties alone cannot affect the position of other parties to thesuit since they are neither bound by it nor are entitled to enforce it.

18. In the case on hand, it is pleaded by the plaintiffs anddefendants 1 and 2 that they have laid a new cart track in their landsubsequent to the suit. Where a party has no further interest in the suitproperty, his consent is not necessary for the compromise of a suit. Therecords placed before me by the defendants 3 to 5 are not sufficient todisprove the contention of the plaintiffs and defendants 1 and 2. No clearfinding given by the trial court pertaining to the said aspect. Hence, I haveno hesitation in setting aside the order passed by the trial court in I.A.No. 1162 of 2002. However, when the right of the defendants 3 to 5 isaffected by the act of laying new cart track by the plaintiffs and defendants1 and 2, certainly they are entitled to file a fresh suit to seek theirremedy. In view of the above said observation, the trial court is directed torefund the court fee paid by the defendants 3 to 5, if any, forthwith.