MUKTI DUTTA vs VIJAY BHUSHAN & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 7th November, 2023
Pronounced on:04th January, 2024

+ CS(OS) 1728/2011

MUKTI DUTTA ….. Plaintiff
Through: Mr. Akshay Makhija Sr. Advocate with Mr. Arpit Kumar Singh, Advocate.

versus

VIJAY BHUSHAN & ORS. ….. Defendants
Through: Mr. Anil K. Airi, Sr. Advocate with Mr. Kunal Kalra, Mr. Digvijay Rai, Mr. Rahul Mourya, Ms. Sadhana Sharma and Mr. Mudit Ruhella, Advocates and Mr. Nitinjya Chaudhary A/R fro D-17.
Mr. Jayant Tripathi, Mr. Shrey Gupta and Ms. Megha Singh, Advocates for LR(iii) of D-1.
Mr. Raaj Malhotra and Mr. Praful Rawat, Advocate for D-2, D-3, D-5 & D-12.
Mr. Madhav Kumar, Advocate for D-12.
Mr. Ruchir Mishra, Mr. Mukesh Kumar Tiwari and Ms. Reba Jena Mishra, Advocates for D-18/ L&DO.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 11438/2022 (under Order XXII Rule 1 on behalf of the plaintiff seeking Withdrawal of the Civil Suit) &
I.A. 12077/2022 (under Order XXIII Rule 1-A read with Order I Rule 10 of CPC on behalf of LR No.(iii) of Defendant No.1 for Transposition as a plaintiff).

1. The present suit has been filed by the plaintiff Ms. Mukti Dutta for Declaration that the Mutation dated 06.06.1952, Will dated 07.06.1976 and Letter of Probate are null and void, Partition of the property, Mandatory and Permanent Injunction against the defendants in respect of the property bearing No.13, Barakhamba Road, New Delhi (hereinafter referred to as “suit property”), which is pending trial.
2. The two applications have been filed, one by the plaintiff for withdrawal of the Suit and other by Mr. Amit Bhushan LR No.(iii) of Defendant No.1 for Transposition as a plaintiff.
3. Briefly stated, the Suit property was exclusively owned by late Shri Narain Dutta, who died intestate and was survived by his wife, late Shri Karam Devi, three daughters namely late Vidyawati, Sumitra Sahai, & Kaushalya and one son late Shri Krishan Dutta. After the demise of late Shri Narain Dutt, despite the fact that their mother late Shri Karam Devi was surviving then, the son late Shri Krishan Dutta had got the entire suit property mutated in his name on 06.06.1952. Thereafter, he executed a Will dated 07.06.1976 bequeathing the suit property in favour of defendant No. 17, Arya Orphanage. Late Sumitra Sahai and the other siblings gave their NOC to the issuance of a Letter of Probate in favour of the executor of the Will, Smt. Rani Dutta, wife of late Shri Krishan Dutta who had assured that no share beyond what late Shri Krishan Dutta was legally entitled to would be alienated by way of the Will.
4. However, when Defendant No. 17 Arya Orphanage sent a Notice for vacating the suit property, Late Sumitra Sahai then filed Suit No. 785 of 1994 for Mandatory Injunction against Arya Orphanage. Late Sumitra Sahai later withdrew the suit due to her old age and the suit was dismissed as withdrawn.
5. Subsequently, when the plaintiff Ms. Mukti Dutta, who is a daughter of late Smt. Vidyawati (sister of Late Sh. Krishan Dutta) became aware of her right in the suit property, the present suit was filed.
6. Defendant Nos. 1, 2 and 12 in their Written Statement had admitted the contents of the plaint in support of the prayer for partition of the Suit Property.
7. The plaintiff has filed I.A. 11438/2022 under Order XXIII Rule 1 CPC for the withdrawal of the suit. It is submitted that she is completely satisfied with the Will dated 07.06.1976 wherein late Shri Krishan Dutta (plaintiff’s mother’s brother) bequeathed his property in favour of defendant No. 17 Arya Orphanage. Therefore, the plaintiff does not wish to contest the case anymore and has sought permission to withdraw the Suit.
8. Shri Amit Bhushan LR (iii) of deceased defendant No.1 in his reply to the application for withdrawal has asserted that the suit was filed by Ms. Mukti Dutta to contest the Will dated 07.06.1976 that was executed by Sh. Krishan Dutta in favour of defendant No.17. The submissions made by Ms. Mukti Dutta in the application stating that she is fully satisfied about the genuineness of the Will, clearly reflects that it is not a case of simplicitor and unconditional withdrawal. It is contrary to her own earlier proceedings. The application for simplicitor withdrawal is opposed more so because Ms. Amit Bhushan, LR No.1 of deceased defendant No.1 has already moved an application for transposition.
9. Defendant No. 3 Shri Arun kaushal in his reply has submitted that the reason provided by the plaintiff is totally contrary to her pleadings while withdrawing the suit. In such cases of withdrawal, wide powers are accorded on the court under Order XXIII Rule 2A CPC to transpose the defendants, as substantial question remains to be adjudicated.
10. Since Ms. Amit Bhushan, LR (iii) to defendant No. 1 has filed an application for transposition, there remains no reason for dismissal of the Suit. Therefore, defendant No. 3 has sought for the dismissal of the application as it does not amount to an unconditional withdrawal by the plaintiff.
11. In I.A. 12077/2022, Ms. Amit Bhushan, LR (iii) of deceased defendant No.1 Shri Vijay Bhushan has sought her transposition as the plaintiff in view of withdrawal of the suit application filed by the plaintiff Ms. Mukti Dutta, to continue the present suit. It is submitted that defendant No.17 Arya Orphanage is the only contesting defendant in the present case. The substantial questions have to be adjudicated against the contesting defendant No.17.
12. Defendant No. 17/ Arya Orphanage in its reply to the application has submitted that the transposition application is not maintainable as defendant No. 1 in his Written Statement had only supported the plaintiff as far as the relief of partition is concerned. It is evident from the Written Statement that the defendant is not seeking any declaratory relief.
13. It is further submitted that the predecessors in interest to defendant Nos. 1 to 16 were parties to the Probate Case bearing No. 232 of 1997 filed by Smt. Rani Dutta, wife of Late Shri Krishan Dutta for Will dated 07.06.1976 and had also given their NOCs for the issuance of Probate; particularly, even late Smt. Karan Devi, the maternal grandmother of defendant No. 1 had given her NOC. In view of these NOCs, judgement dated 08.11.1978 was made granting Probate in respect of the Will. Once the Will has been accepted by the predecessors of the defendant Nos. 1 to 16, they are estopped from claiming any right against defendant No. 17. Therefore, the application for transposition is not maintainable as a Declaration cannot be sought under the garb of a relief of partition.
14. It is asserted that defendant No. 1, who was 34 years old at that time, did not seek any Declaration against the issuance of the Letter of Probate. Subsequently, the property was mutated in favour of defendant No. 17. Moreover, transposition cannot be effected as the cause of action of the plaintiff cannot be same for the defendants as well. If the application for transposition is allowed, the character of the suit would totally change. It would also amount to condonation of delay in filing the suit.
15. Submissions heard.
16. The plaintiff has sought simplicitor withdrawal of the suit Under Order XXIII Rule 1 CPC which reads as under:

“Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or 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 whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.”
17. Order XXIII Rule 1 CPC thus, permits the plaintiff after the institution of the suit, at any time to abandon the suit or part of the claim against all or any of the defendants. No permission or Order of the Court is necessary for such unconditional abandonment of entire or part claim against one or all of the defendants though many a times, formal orders are made recording the abandonment. The only right that a defendant has under OXXII Rule I CPC is to claim costs for having been made to defend the suit, but grant of costs to the defendant is also the discretion of the Court while permitting withdrawal.
18. The Apex Court in Shiv Prasad vs. Durga Prasad (1975) 1 SCC 405 had observed that every plaintiff has an unconditional right to withdraw his suit and is unilateral act in this behalf is sufficient and no formal order of the court is necessary. The court may make such formal orders, but the withdrawal is not dependent on the order of the court. The withdrawal is complete as the plaintiff intimates the court about its intention to withdraw the suit.
19. In the case of K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458, the right of a defendant to object to the withdrawal of a suit was determined as under:
“The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts; (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the Court, in that case he will be precluded from suing again on the same cause of action. Neither the plaintiff can abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the Court enables me plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.”
20. It is therefore clear that a plaintiff has an unconditional right to withdraw a suit and a suit stands withdrawn as soon as the plaintiff has intimated the court. The only eventuality for continuation of Suit is envisaged under Order XXIII Rule 1A CPC which protects the rights of the defendants by enabling their transposition as plaintiff if any substantial right still remains to be adjudicated, to prevent multiplicity of proceedings. The Rule reads as under:
“Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.”
21. In the present case, the suit was filed by the plaintiff for Partition, Declaration and Mandatory and Permanent Injunction in respect of the properties and had challenged the Will dated 07.06.1976 executed by Late Shri Krishan Dutta in favour of defendant No.17. All the siblings of Late Shri Krishan Dutta were a party to the Probate Petition while defendant No.17 Arya Orphanage was the beneficiary under the alleged Will, who had given their No Objection to the Probate being granted in respect of the Will.
22. The authenticity and the validity of the Will had been challenged by the original plaintiff Ms. Mukti Dutta who had sought partition of the suit property amongst the legal heirs of late Shri Narain Dutt wherein defendant No. 17/ Arya Orphanage is the third party. In essence, the plaintiff as well as defendant Nos.1 to 16 have substantial right to be determined against defendant No. 1.
23. In the case of Bhagwan Swaroop & Ors. vs. Mool Chand & Ors. (1983) 2 SCC 132, it was observed that in a partition suit of Joint Family Property, the parties are closely interrelated and the position of plaintiffs and defendants can be interchangeable. Therefore, each party adopts the same position with the other parties. Likewise, similar observations were made by the Apex Court in the case of Dr. P. Nalla Thampy Thera vs. B.L. Shanker and Ors. (1984) Supp. SCC 631.
24. Thus, all the other defendants who were the legal heirs, have a equal interest in challenging the Will in favour of defendant No.17; same as was claimed by the plaintiff. They endorsed all the contentions as were agitated by the plaintiff, their interests were common to that of the plaintiff.
25. Further, in the case of Tukaram Mahadu Tandel vs. Ramchandra Mahadu Tandel & Ors. (1925) SCC OnLine Bom. 206, the High Court of Bombay had observed that in a partition suit a defendant who is also seeking a share in the property is in the same position as the plaintiff and their bonafide claims to a share in the property cannot be defeated by the unilateral acts of the plaintiff and the suit must not be permitted to be withdrawn or abandoned by the plaintiff without notice to the defendant who are also having the same interest of seeking a share in the property in respect of which a partition suit is filed by the plaintiff.
26. Furthermore, in the partition suit every interested party may be deemed to be a plaintiff as has been observed in the case of A. Krishna Shenoy vs. Ganga Devi G. & Ors. SLP (C) 8080 of 2019 decided on 11.09.2013.
27. Albeit, this suit may have been filed by the plaintiff, but all defendants except Defendant no.17 supported her totally and defendants in this partition suit, hold the same case as the plaintiff.
28. In Sneh Gupta v. Devi Sarup, (2009) 6 SCC 194, the Apex Court after referring to Bijayananda Patnaik v. Satrughna Sahu and Ors. (1964) 2 SCR 538; Hulas Rai Baij Nath v. Firm K.B. Bass & Co. (1967) 3 SCR 886, held that a right to withdraw a suit in the suitor would be unqualified, if no right has been vested in any other party.
29. However, the situation is not the same when there are more than one plaintiff. Order XXIII Rule 1(5) CPC provides that if there are more than one plaintiff then one plaintiff cannot withdraw the entire suit without the consent of all the plaintiffs. Order XXIII Rule 1(5) reads as under:
“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.”
30. In Mohan Lal vs Nain Singh, 2018 SCC OnLine All 2479 it was held that an application for withdrawal of suit by one plaintiff cannot be allowed without the consent of all the co-plaintiffs.
31. Defendant No. 17 has opposed the application for transposition stating that the cause of action would not be the same for the plaintiff and defendant Nos. 1 to 16 and allowing the application would not only amount to ignoring the limitation period for filing the suit but also change the nature of the claims.
32. It is observed that the concerns of defendant No. 17 would have been valid had there been a conflict of interest between plaintiff and the LR (iii) to defendant No. 1. In this regard, the Bombay High Court in the case of Nalini vs Deepak Manohar Gaikwad, 2020 SCC OnLine Bom 2577 held that the transposition of a defendant can be permitted in case of part abandonment of the claim by the plaintiff, provided the defendant seeking transposition has identical interest with the plaintiff vis-a-vis both, contesting defendants and subject matter property. If there is a conflict of interest between plaintiff and defendant seeking transposition, in respect of even one defendant or in respect of even one of the suit property, then transposition of such defendant can not be permitted. The obvious reason for such interpretation is that if such Defendant is permitted to be transposed in a suit, then it would virtually mean that there will be more than one set of causes being permitted amongst parties in one suit and that will be clearly a mis-joinder of cause of action or a mis-joinder of parties or both.
33. It is apparent that there no conflict of interest between the said parties as is evinced from the plaint and written statement. In the event the said defendant is transposed as the plaintiff, the nature and the complexity of the suit would not be altered in any manner. Further, the question of LR (iii) to defendant Nos. 1 having a different cause of action from that of the plaintiff, and the suit being barred by limitation, cannot be determined at this stage as they involve the merits of the case.
34. In the light of the aforesaid discussion, it is held that in the present partition suit instituted by the plaintiff, though the other legal descendants have been arrayed as Defendant No.1 to 16 but in fact, they are also co-plaintiffs as they are also joining the plaintiff in claiming their rights to suit property against defendant. No. 17. Thus, their consent to withdrawal becomes mandatory before the withdrawal can be permitted. The Defendant no. 1(iii) Mr. Amit Bhushan has sought permission to be transposed as the plaintiff. Thus, the withdrawal Application of the plaintiff is treated as an abandonment of her claims alone in the suit property which is hereby allowed and Mr. Amit Bhushan, LR No(iii) to defendant no 1 is permitted to be transposed as the plaintiff.
35. The two applications are accordingly disposed of.
36. Amended Memo of parties be filed by the transposed plaintiff.

CS(OS) 1728/2011
36. List on 10.01.2024.

(NEENA BANSAL KRISHNA)
JUDGE

JANUARY 04, 2024
Va/Ek

CS(OS) 1728/2011 Page 11 of 11