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The Code Of Civil Procedure (Amendment) Act, 2002
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Allahabad High Court
Kshetriya Sri Gandhi Ashram ... vs Additional District Judge Court ... on 7 January, 2010

1

Reserved

Writ Petition No.6825 (MS) of 2009

Kshetriya Sri Gandhi Ashram, Situate at Naipalapur,

Post Sitapur, district Sitapur, through its Secretary Shri Nathuni Pandey and another .....Petitioner Versus

Additional District Judge, Sitapur and others ....Opp.parties. ***

Hon'ble Shri Narayan Shukla,J.

Heard Mr.R.K.Sharma, learned counsel for the petitioners and Mr.D.C.Mukherjee, learned counsel for opposite party Nos. 3, 4 and 5. The petitioners have challenged the order dated 3rd of February, 2006, passed by the Civil Judge (SD), Sitapur in civil suit No.394 of 2005, whereby the petitioners' objection against the counter claim filed by the respondents-defendants has been rejected as also the order dated 14th of September, 2009, passed by the Additional District Judge, Sitapur in Civil Revision No.25 of 2006, upholding the order passed by the Civil Judge. Briefly the facts of the case are that the petitioners filed a suit for permanent injunction, which is registered as Civil Suit No.394 of 2005 against opposite parties 3 to 8/defendants restraining them from claiming the opposite party No.4 as Secretary to the Bank and Financial Institution. The opposite party Nos.3 and 4 (defendants Nos.1 and 2) had already filed a Caveat. The Civil court fixed the date for written statement as 18th of August, 2005 and for framing of issues as 25th August, 2005 and for disposal of temporary injunction application on 18th of July, 2005. On 18th of July, 2005 the court adjourned the matter for 20th of July, 2005. On 20th of July, 2005, opposite party No.4 filed objection against the application for 2

temporary injunction. The court fixed the next date on 22nd of July, 2005 for disposal of the application. Thereafter on 16th of August, 2005, the petitioners' moved an application under Order XXIII Rule 1 of Code of Civil Procedure for abandonment of suit, upon which the court fixed the next date on 18th of August, 2005. On 18th of August, 2005 the case was adjourned for 25th of August, 2005. Again on 25th of August, 2005 and 27th of August, 2005 the case was adjourned. Thereafter the case was adjourned on several dates and on the date fixed on 18th of January, 2006, the opposite party No.3 to 8 moved an application to register their counter claim. On 24th of January, 2006 the petitioners filed objection against the said application and on 31st of January, 2006, the opposite parties/defendants also filed objection. On 3rd of February, 2006 the trial court passed the order impugned, whereby the petitioners' objection against the counter claim was rejected with the observations that the petitioners' may withdraw the suit, but will proceed on the counter claim filed by the opposite parties. Being aggrieved with which the petitioners preferred a revision which has also been rejected.

The learned counsel for the petitioners submits that the order XXIII Rule 1 speaks that 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. He further submits that as soon as the plaintiff moves such application, he abandons his claim and no formal order of the court is required, thus the abandonment becomes effective immediately as soon as such application is presented before the court. In support of his submission 3

he cited the following decisions:-

(1) Sheikh Khaliqujjama (died) substituted by his legal representatives versus Akhtarujjam and others, reported in 2004 (55) ALR 368. (para 3 is relevant, which is to be quoted).

(2) Smt.Raisa Sultana Begum and others versus Abdul Qadir and others, reported in AIR 1966 Allahabad 318 (V 53 C 94). In this case the suit was filed in the court of learned Munsif by the three applicants. One of them, namely, Ghufran Ahmad, made an application stating that he had no dispute left with the defendants-opposite parties and praying that his name might be expunged from the array of plaintiffs because he was left with no interest in the subject-matter of the suit. Before passing any order on the application Mr.Gufran Ahmad filed an affidavit stating that the application had been made by him on account of fraud practiced upon him by the opposite parties and that he did not want to withdraw from the suit. Learned Munsif allowed his earlier application holding that once he had withdrawn from the suit, he could not resile from the withdrawal and that even if he had withdrawn on account of fraud practiced upon him, his remedy was by means of another suit. Thereafter the revision was filed. The revisional court referred the matter to the larger Bench with the following question:-

"Can the plaintiff who has already moved an application under sub- Rule (1) of Order XXIII, Rule 1, CPC withdraw the application for the withdrawal of the suit before orders are passed on the withdrawal application, i.e., the suit is, as far as the plaintiff is concerned, struck off 4

from the file?"

The larger Bench held that since withdrawing a suit is a unilateral act to be done by the plaintiff, it requires no permission or order of the Court and if it is not subject to any condition, it becomes effective as soon as it is done just as to compromise does. Any information of it given to the Court is not part of it, so also any order passed by the Court on receiving the information. The act is like a point and not continuous like a line having a beginning and an end. Either it is done or not done; there is nothing like its being done in completely or ineffectively. The consequence, of an act of withdrawal is that the plaintiff ceases to be a plaintiff before the Court. This is the natural consequence of the act; a further consequence imposed by sub- rule (3) is that he cannot institute any fresh suit in respect of the subject matter. He becomes subject to this bar as soon as he withdraws the suit. It follows as a corollary that he cannot revoke or withdraw the act of withdrawal. Thus the question referred to the Larger Bench was answered in the negative manner.

(3) Hulas Rai Baijnath versus K.B.Bass and Co.Ltd. Reported in 1963 Allahabad 368 (V 50 C 105). In this case the court hold that the power to withdraw the suit under Order XXIII Rule 1 (1) is absolute. The law regarding the withdrawal of a suit gives the plaintiff the liberty to withdraw from a suit unconditionally on finding it unsustainable, or for any other reason. No leave or order is necessary for this. The aforesaid judgment of this court was appealed to the Hon'ble Supreme Court. The Supreme court affirmed the order passed by this court 5

and dismissed the appeal, which is reported as M/s.Hulas Rai Baij Nath versus Firm K.B.Bass and Co., reported in AIR 1968 Supreme Court 111 (V 55 C 30). The Hon'ble Supreme Court held that the language of Order 23 Rule 1, sub-rule (1), CPC, gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-Rule (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it.

(4) Kamta and another versus Gaya Prasad reported in AIR 1972 Allahabad 143 (V 59 C 34). In this case this court relying upon a decision of the Hon'ble Supreme Court rendered in the case of Hulas Rai versus K.B.Bass and Co. (Supra) held that the sub-rule (1) of Rule 1 of Order 23 CPC confers an unqualified right on the plaintiff to withdraw the suit at any time.

(5) Upendra Kumar and others versus District Judge, Azamgarh and others, reported in 1997 (1) Allahabad Rent Cases, 594. In this case in a suit for declaration and for cancellation of deed of sale the plaintiff moved an application for withdrawal of suit. However, before any order could be passed on the said application, the plaintiffs filed another application for dismissal of the said application. The defendants filed objection. While allowing the application, the subsequent application moved by the plaintiff 6

for withdrawal of the earlier application was rejected. Against which revision was filed. The revisional court also upheld the order passed by the trial court. Thereafter the order was challenged in the writ petition. The petitioners contended that the application being an application under Order 23 Rule 1 of the Code of Civil Procedure, it become absolute as soon it was filed, therefore, the same can not be withdrawn or cancelled by means of any subsequent application. In asmuch as withdrawal of the suit is unilateral act which become absolute as soon the same is filed before the court. This court held that the withdrawal or abandonment without leave being a unilateral act of the plaintiff, the defendant can not oppose such unilateral act, it is only for the Court to examine whether such act is an abandonment and has been exercised unilaterally when the same is sought to be complete as soon made without depending on any order being made thereon by the Court or its acting upon the same and attracting the consequence of sub-rule (4) of Rule 1, Order 23 of the CPC.

Accordingly he submits that as soon as the petitioners-plaintiffs moved the application for abandonment, their act had become complete and suit was abandoned. Accordingly the suit was not in existence, therefore, it was not open for the opposite parties-defendants to file counter claim and the civil court as well as the revisional court has committed error in entertaining the counter claim filed by the opposite parties/defendants. Thus the orders impugned suffer from error and are unsustainable. In reply Mr.D.C.Mukherjee, learned Advocate by inviting the attention of this court towards the same very decision i.e. (Upendra Kumar 7

and others versus District Judge, Azamgarh and others (Supra) submitted that the present case is not a case of abandonment, but it is a case of non prosecution. There is a great difference between two, as has been held in the aforesaid judgment itself. The non-prosecution in a case settled between the parties means the pursuing of the claim is complete. It is not an abandonment of the claim. It is a consequence of the settlement of the claim by reason whereof the pursuit is complete. It is an achievement of the claim, whatever might be the manner. Thus he submits that it is necessary to examine as to whether the application moved by the petitioners-plaintiffs is an abandonment within the meaning of sub Rule (1) of Rule 1 of Order 23 or it is a case of non-prosecution. It is stated that in the present case the petitioners filed a suit for permanent injunction restraining the defendant No.4 from claiming as Secretary of the Bank. Now through the application for withdrawal of the suit it has been submitted that by means of orders dated 28.7.2005 and 30.7.2005 their grievances have been redressed and no cause of action remains to pursue the suit. Thus, it is evident that under the order of the authority concerned, the dispute has been settled and purpose of filing the suit has been served that is why the petitioners are not pursuing the case. It is not the case that they have abandoned their claim. So far as the proposition laid down by the Hon'ble Supreme Court on abandonment of the suit is concerned, he does not dispute so, but submits that the word 'abandonment' has been defined as relinquish, surrender or give up, but here the petitioner is withdrawing the suit on fulfillment of the object. He is 8

neither relinquishing, surrendering, nor giving up his claim. Thus he submits that the application moved by the petitioners for withdrawal of the suit requires the order of the court and before passing the order by the court, the opposite parties-defendants being party, registered their counter claim, therefore, for the purpose of adjudication of their counter claim the suit still exists.

Upon perusal of the application moved by the petitioners for withdrawal of the suit, I find that the language of the application is very clear as from the application it has been stated that though they filed suit for permanent injunction against the defendant No.4, who was claiming himself as a Secretary of the Bank, but now under the orders of the Deputy Registrar, their purpose of filing the suit has been fulfilled and now no further cause of action remains, therefore, they do not want to pursue their suit, rather they want to get it returned unconditionally. As the word 'abandonment' as well as the 'non-prosecution' has been interpreted by this court in the case of Upendra Kumar (Supra) in the light of the definition given in the new Shorter Oxford Dictionary, I am in definite view that it is not a case of 'abandonment' but is is a case of 'non-prosecution', due to fulfillment of their object of filing the suit, which requires order to be passed by the Civil Court and since before passing the order by the Civil Court the opposite parties-defendants have registered their counter claim, they have right to continue with the suit with their counter claim. Thus I do not find error in the orders passed by the courts below. In the result the writ petition is dismissed.

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Dated:7.1.2010/Banswar