Order 21 Rule 89 maintainability turns on prior Rule 90 withdrawal, which is effective upon intimation without court order.

Under Order 21 Rule 89(2) CPC, an applicant who has already filed a Rule 90 application cannot make or prosecute a Rule 89 application unless the Rule 90 application is withdrawn. The Supreme Court treated withdrawal as complete once the applicant intimated the Court of that withdrawal, and held that no formal order permitting withdrawal was required. Later steps taken in the Rule 90 proceeding did not undo the earlier withdrawal. On that basis, the Rule 89 application was maintainable and was rightly allowed.

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Issues: Whether an application under Order 21 Rule 89 of the Code of Civil Procedure, 1908 is maintainable when the applicant has earlier filed an application under Order 21 Rule 90 and whether withdrawal of the Rule 90 application requires a formal order of the Court.

Analysis: The words "make or prosecute" in Order 21 Rule 89(2) were read together so that both filing and continuation of a Rule 89 application are barred unless the prior Rule 90 application is withdrawn. The withdrawal of the Rule 90 application was held to be complete on the applicant intimating the Court of that withdrawal; no order permitting withdrawal was necessary. The Court also treated the later steps in the Rule 90 proceeding as ineffective to undo the earlier withdrawal.

Conclusion: The Rule 89 application was maintainable and was rightly allowed; the withdrawal of the Rule 90 application was effective without a formal court order.

Ratio Decidendi: Under Order 21 Rule 89(2), an applicant who has filed a Rule 90 application may neither make nor prosecute a Rule 89 application until the Rule 90 application is withdrawn, and such withdrawal is effective upon the applicant's intimation to the Court without requiring a formal order.

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