Usha Mehra, J.:— A very short and interesting point, has been raised in this Revision Petition, namely once the suit has been withdrawn by the plaintiff, can he revoke that withdrawal ?
2. This was the only point raised in this Revision Petition. There are no much facts involved in this case. The short and brief facts are that respondent herein filed a suit against the petitioner who happens to be his son. Summons of the suit were served on the petitioner on 8-1-1993 and he was required to appear in Court on 11-1-1993. On 10-1-1993, respondent herein met the petitioner according to the allegation and agreed to withdraw the suit against the petitioner. He made the following endorsement on 10-1-1993 on the summon issued by the Court to the defendant:—
“I am withdrawing my above case against my son Bharat Bhushan Gupta which is pending in the Court of Shri Shiv Charan, Magistrate. Other legal formalities would be done by my Advocate.”
3. sub rule (1) of Rule 1 of Order 23, Code of Civil Procedure, gives unqualified right to a plaintiff to withdraw or abandon a suit. Admittedly the Rules does not require any order in the case of with drawal. No leave or order is necessary. The permission of Court, is necessary only when the plaintiff wants to file a fresh suit in respect of the same cause of action. Plaintiff can also withdraw his suit with liberty to bring a fresh suit. But the question is if the withdrawal is not before the court or with the leave of the Court, but is done by making an endorsement on the summons, can he come to the Court and state that he wants to revoke that withdrawal ? Mr. V.B Andley, appearing for the petitioner, contended that the words “at any time” in sub rule (1) means at any stage after the institution of the suit and before its disposal. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. The language of sub rule (1) affirms the unqualified right of the plaintiff to withdraw or abandon a suit. There is no provision in the Code which requires the court to refuse permission to withdraw a suit or to compel a plaintiff to proceed with his suit. This is so because withdrawal of the suit under sub rule (1) is complete as soon as it takes place and in any case when the court is informed of it. That being so there is no question of a right to revoke such withdrawal. No order is necessary to effectuate it.
4. So far as the legal position is concerned there is no quarrel with the same. But each fact has to be weighed on its merits, in the present case, on the summon the plaintiff had mentioned that he was withdrawing his case against his son, pending in the Court. Other legal formalities were to be done by his lawyer. The language of the endorsement shows that the plaintiff had not exercised the unqualified right to withdraw the suit. In fact the very reading of this endorsement shows that the legal formalities were to be done by his advocate, meaning thereby the lawyer was to move an application in this regard in the Court. It can be termed as a conditional withdrawal. The lawyer never moved an application in the Court for withdrawing the suit. The plaintiff had reserved the right which he never exercised before the Court. Therefore there was no question for the Court to apply its mind. The question arises, what could be the other formalities. Mr. Andley stated that it was simply to inform the Court that the suit has been withdrawn. This condition can be interpreted in other way also that the plaintiff had to give instruction to his lawyer to move an application in the Court incorporating the terms and conditions of his withdrawal. If he was to simply withdraw the suit he would not have left the formalities to be completed by his lawyer. This shows that it was not a withdrawal without impediments. An application for withdrawan without prejudice to lawful rights and remedy is not enough. May be by “other legal formalities” the plaintiff meant the liberty to institute fresh suit on the same cause of action on the happening of certain events.
5. The factum of his writing that other formalities shall be completed by the lawyer shows that in fact plaintiff was to move an application, till then he was only considering to withdraw or he was likely to withdraw. The words “I am withdrawing” does not mean that he had withdraw the option of or right to withdraw. It would mean “I will withdraw subject to the legal formalaties to be gone into by the lawyer”. Leared counsel for the petitioner has placed reliance on the judgement of the Allahabad High Court, the same was taken note and discussed by the learned Addl. District Judge i.e Razia Sultana Begam and others v. Abdul Qadir and others reported in AIR 1966 Allahabad page 318(1). In that case Court observed that though no specific orders are required to be passed by the Court on withdrawal, however certain orders may be passed by the Court in order to give effect to het consequences arising out of the withdrawal. But before the said thing could have happened in this case, the respondent informed to the court that endorsement on the summon was obtained under pressure by his son and that withdrawal was not with his free consent. Taking into consideration the relationship of the petitioner and the respondent, being father and son, and if the father under the pressure of the son writes that he will withdraw the suit but while appearing in the court informs to the court that withdrawal was not by free consent but under duress and pressure. Then the Court cannot shut its eyes in these realities. In such on eventuality the decision of Calcutta High Court is on all force applicable. In the case of Rameswar Sarkar v. State of West Bengal and others reported in AIR 1986 Calcutta page 19(2) it was held that in a proper case an application for withdrawal of suit may be allowed to be withdrawn and the suit proceeded with. As already observed above it is not every case that the withdrawal can be allowed to be revoked. But in the facts and circumstances of this case when it has come on record that summons were sent in the suit to the present petitioner. According to respondent, the petitioner obtained endorsement from the respondent under pressure. Because of relationship between the parties, respondent yielded to the pressure of the petitioner. If it is under pressure, then the Court cannot give effect to such a withdrawal of the suit. Therefore, to my mind, it is a fit case, where the court rightly rejected the revocation of the withdrawal, because the reading of the endorsement shows that it was not an unqualified withdrawal. It was subject to the condition of fulfilling the formalities through the lawyer which formalities were never completed at any stage.
6. For the reasons stated above. I see no infirmity in the order or the trial court nor any merit in his petition.
May 19th, 1993
D.VDismissed.