Jaideep Gupta And Others v. Inder Chand Jain And Ors.

Mr. R.C Lahoti, J.— Withdrawal of a withdrawal application?

2. Whether a plaintiff can withdraw ‘an application to withdraw the suit’—is a question arising for decision. Jaideep, Sandeep and Smt. Pushpa are respectively the two sons and the wife of one Sudhir Kumar Gupta who is defendant No. 2. It appears that defendant No. 2 has made an alienation of the suit property in favour of Inder Chand Jain, the defendant No. 1. According to the plaintiffs, Sudhir Kumar defendant No. 2 had only one-eighth share in the property which was ancestral in character. The alienation is sought to be avoided by seeking a decree of declaration that the same was void and not binding on the co-parcenery.

3. The suit was in progress when on 14.12.1993, Jaideep Gupta, plaintiff No. 1 filed an application under Order 23 Rule 1 read with Section 151 CPC wherein he made the following prayers: “(i) the plaintiff-applicant be kindly allowed to withdraw the abovenoted suit and the same be dismissed as withdrawn; (ii) the name of the applicant be deleted from the array of the plaintiffs”. This application was accompanied by yet another application under Section 151 CPC requesting the Court to record the oral statement of the plaintiff-applicant Jaideep Gupta in support of his application filed under Order 23 Rule 1 read with Section 151 CPC.

4. The date on which the two applications were filed was not a date of hearing in the suit. The Court directed notices on both the applications to be issued to other parties in the suit, i.e the defendants and other plaintiffs.

5. Today, when the applications have come up for hearing, Jaideep plaintiff No. 1 present in the Court has prayed for withdrawal of his abovesaid two applications. He has stated that he was pressurised by the defendants into moving the abovesaid applications and now by his own free volition he did not want to press the applications and rather wanted to withdraw them. Learned Counsel appearing for the defendants has opposed the prayer made by the plaintiff No. 1 to day. He has submitted that an application for an unconditional withdrawal of suit having been moved, the withdrawal was completed in so far as the plaintiff No. 1 was concerned; the prayer for withdrawal did not depend on the leave of the Court for its efficacy; and hence the suit should be deemed to have been withdrawn in so far as plaintiff No. 1 is concerned, on 15.12.1993 itself i.e the date on which applications were moved and it was immaterial whether or not any order on the applications was passed by the Court. Reliance has been placed by the learned Counsel for the defendants on a decision of Supreme Court in Shiv Parshad v. Durga Parshad, (1975) 1 SCC 405 : AIR 1975 S.C 957 and a Single Bench decision of this Court in Mr. Bharat Bhushan Gupta.…Petitioner v. Mr. Raj Kumar Gupta…, 51 DLT 39 as also on a Division Bench decision of Allahabad High Court in Raisa Sultana v. Abdul Qadir, AIR 1966 Allahabad 318.

6. Before this Court may proceed to examine the decisions relied on by the learned Counsel for the defendants, let it be noted that there is weight of authority for the proposition that an application for withdrawal of the suit can be withdrawn at any time before its disposal by the Court. (See Thomas George v. Skarish Joseph, AIR 1973 Kerala 140, Jagernath Keyal v. Nagar Mull, AIR 1962 Patna 426; Yeshwant Goverdhan v. Totaram Avasu, AIR 1958 28 and Lakshmana Pillai v. Appalwar Alwar Auuangar, AIR 1923 MADRAS 246.

7. In the opinion of this Court, the law laid down by their Lordship of the Supreme Court in Shiv Parshad's case (supra) is not applicable to the facts of the case at hand. Shiv Parshad's case does not deal with Order 23 Rule 1 CPC or with withdrawal of a suit. It was a case where the provisions contained in Rules 89 and 90 of Order 21 came up for the consideration of their Lordships. An application under Rule 90 for setting aside the sale had been moved and thereafter an application under Rule 89 was moved. Rule 89(2) provides “where a person applies under Rule 89 to set aside the sale of immovable property he shall not unless he with draws his application be entitled to make or prosecute an application under the rule.”

8. The judgment debtor moved an application under Rule 89 and therein he mentioned that he was withdrawing his prayer made in application under Rule 90. He also filed a separate application to that effect. Their Lordship of the Supreme Court held that the application under Rule 89 was maintainable though no specific order was passed by the Court permitting withdrawal of the application under rule 90. It is clear that the very factum of filing of an application under Rule 89 incorporating a statement that the applicant was withdrawing his prior application under Rule 90, had amounted to withdrawal in the eye of law.

9. Bharat Bhushan Gupta's case (supra), a Single Bench decision of this Court refers to the Allahabad decision in Raisa Sultana's case. It also takes note of Calcutta High Court decision in Rameshwar Sarkar v. State of West Bengal, AIR 1986 Calcutta 19 taking a view to the contrary.

10. Bharat Bhushan Gupta's case also had peculiar facts. On the summons issued to the defendant, the plaintiff had made an endorsement to the effect that he was withdrawing the case. A learned Single Judge of this Court held that the withdrawal was not before the Court and hence was capable of being revoked. In that context the learned Single Judge went on to observe as under:

“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 rule does not require any order in the case of withdrawal. No leave or order is necessary. The permission of the 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 6n the summons can be 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 othere is no question of a right to revoke such withdrawal. No order is necessary to effectuate it. 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.”

11. The learned Single Judge has not dissented from the view taken by the Calcutta High Court in the case of Rameshwar Sarkar's case (supra) wherein it has been held that in a proper case an application for withdrawal of the suit may be allowed to be withdrawn and suit proceeded with.

12. Before this Court what is being relied on by the learned Counsel for the defendants from Bharat Bhushan Gupta's case is not the ratio but the observations.

13. A Division Bench of Allahabad High Court in Raisa Sultana's case has held:

“The right to withdraw suit is not fettered by any conditions; it is an absolute right which a plaintiff can exercise at the sweet will at any time before the judgment is delivered.”

“Since withdrawing a suit is a unilateral act to be done by the plaintiff, it requires no permission or order of the Court and is not subject to any condition, it becomes effective as soon as it is done just as a compromise does. Any information of it given to the Court is no part of it, so also any order passed by the Court on receiving the information”

“On withdrawal certain orders may be passed by the Court but they are not for giving effect to the withdrawal, but to give effect to consequences arising out of the withdrawal. Order 23 Rule 1 does not require any order, there can be no question of an order if no application is to be made by the plaintiff.”

“The right to withdraw has been expressly conferred by Rule 1(1); there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that the right to withdraw includes in itself a right to revoke the withdrawal.”

14. The abovesaid decision of Allahabad High Court as also of Mysore High Court in Amalgamated Electricity Co Ltd. v. Kutubuddin Rajesaheb Chancha, AIR 1970 My sore 155 taking a view similar to Calcutta High Court's view have been commented upon by the High Court of Karela in Thomas George's case (supra). The learned Judge has held:—

“It appears to me that though no order on an application for withdrawal under Order 23 Rule 1(1) is called for, nevertheless withdrawal becomes irrevocable only when the Court has occasion to exercise its mind on the factum of withdrawal brought to its notice. After that moment it is not open to the party to back out of it. Until that is brought to its notice, the withdrawal has not been acted upon.” (emphasis supplied)

15. I find myself in respectful agreement with the view taken by the Karela High Court. There are added reasons. I may refer to a Full Bench decision of High Court of Madhya Pradesh in Budhulal Kasturchand v. Chhotelal, AIR 1977 MP 1 and usefully extract a few observations made therein though in the context of Section 148 CPC. The Full Bench has held:

“So long as the Court does not record a formal order disposing of the suit or proceedings, it continues to have the jurisdiction to extend the time granted to a party for performing an act, notwithstanding it having already expired.”

“The Court does not cease to have jurisdiction until it makes an order finally disposing of the proceeding before it.”(emphasis supplied)

16. So long as the Court is seized of the proceedings and the proceedings have not actually terminated of its own, the Court retains jurisdiction to pass appropriate orders, take note of the prayers made by the parties and cure the adverse consequences, flowing from the act of any party before it, if the same be capable of being cured without prejudice to the other side dispensation of justice shorn of technicalities, being of paramount consideration. A perusal of the contents of the application under Order 23 Rule 1 moved by the plaintiff Jaideep Gupta and the prayer part quoted hereinabove clearly indicates that the plaintiff No. 1 had wanted the leave of the Court to withdraw from the suit and an order to be passed dismissing the suit as withdrawn. He had also by filing a separate application prayed for his statement being recorded. The application under Order 23 Rule 1 CPC stood in need of the order of the Court to be effective. Neither the statement of the plaintiff No. 1 had been recorded, nor the Court had passed any order. Before the statement of the plaintiff could be recorded and an order on the application under Order 23 Rule 1 CPC could be passed, the plaintiff No. 1 has made it clear that he had been pressurised into moving the application and now he did not want to withdraw from the suit. Such a prayer cannot be refused from being considered merely because the applicant had earlier filed an application under Order 23 Rule 1 CPC.

17. Both the I.As No. 10733/93 (u/order 23 Rule 1 CPC) and No. 10734/93 (u/Sec. 151 CPC praying for recording oral statement in support of IA 10733/93) are dismissed as withdrawn.

Appeal allowed.