1. A very interesting question is raised before me. The plaintiff in a suit moved a petition to withdraw the suit under Order 23. Rule 1(1) of the CPC. While that application was pending, and apparently before the Court judicially noticed that application, the plaintiff sought to withdraw, that application by another application. This was objected to by the 2nd defendant who is the revision petitioner. According to him, when once the plaintiff moves for withdrawal, becomes automatically operative and he cannot be allowed to go back upon his earlier motion. This plea was not accepted by the Court below end hence the 2nd defendant has come up in revision.
2. It appears to me that if any plaintiff can withdraw a suit at any time after the institution of the suit he can equally well withdraw his application moved under Order 23. Rule 1(1) of the CPC before it is acted upon. It is more so because even an application is not contemplated for withdrawal, Withdrawal becomes effective when the plaintiff expresses his intention to with draw in such manner as to be communicated to the Court and it is on such communication that withdrawal becomes effective.
3. By the term ‘communication’. I mean not merely the filing of a petition in Court but bringing the fact of withdrawal to the notice of the Court so as to enable the Court to act upon it by passing appropriate order, such as confining the case to the records, ordering costs, or disposing it of for statistical purposes. What could be said of a withdrawal application could equally be said of an application to withdraw it and if that be the case, there can be no fetter on the right of the plaintiff who hag sought to withdraw a suit to say that he no longer wants to withdraw. In fact, in the case of a petition for withdrawal since no orders are necessary there is no reason why it could not be withdrawn before the Court acts upon it.
4. Different views have been taken on this by the Courts of this country and I find that preponderance of view is in favour of permitting withdrawal. But counsel for the revision petitioner relies on two decisions to support his stand, AIR 1966 All 318 and AIR 1970 Mys 155, particularly the former decision. I am not going into it in elaborate detail because I am resting the decision of this case on another point. But I would venture to observe that the question is not whether the withdrawal should be permitted because of locus poenitentiae on the part of the party who moves for withdrawal. That may possibly be the reason which prompts a party to seek withdrawal but the question is whether the party has got a right to seek withdrawal. Just as he seeks to withdraw a suit, he can very well seek to withdraw an application for withdrawal. The reasoning in the decision of the Allahabad High Court appears to be that when once an application for withdrawal is filed, withdrawal is complete as it is automatic. Nothing more remains and therefore the party cannot go back on it. If no orders on the withdrawal petition are contemplated, then, of course, the mere fact that a petition has been filed is of no consequence. It appears to me that though no order on an application for withdrawal under Order 23. Rule 1(1) is called for nevertheless withdrawal be comes 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. It is just as good or as bad as a withdrawal in the contemplation of a party, I think this is sufficient to answer the decision of the Allahabad High Court. I do not want to go into it in detail because, as I said, on the facts of this case the objection of the revision petitioner at any rate should have been considered to be of very little substance.
5. Long after the filing the application for withdrawal, and in fact even after the application filed by the plaintiff to withdraw this withdrawal application, he has come to this Court in revision in C.R.P No. 212 of 1972. The injunction which he had sought for in the suit against the 2nd defendant and which had been denied to him by the Courts below was allowed to him by order passed in the revision. If the 2nd defendant had a case that the suit was no longer pending and therefore no orders should have been passed thereon, he should have urged it before the Court in time. In fact, from the records of the revision case it is seen that he filed a petition seeking admission of additional documents and these documents include records relating to the withdrawal and the petition to withdraw the withdrawal application. This Court having proceeded with the matter in an interlocutory application in the suit it is no longer open to the petitioner in this revision to contend that the suit was not pending and the suit must be deemed, to have been disposed of on the date the withdrawal application was filed. For this reason. I find that the petition has to be dismissed. I do so. But in the circumstances. I direct parties to suffer costs-in this revision.
6. Petition dismissed.