AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2012 (12) TMI 1205
X X X X Extracts X X X X
X X X X Extracts X X X X
....nent injunction from alienating the land in dispute to any third party and not to interfere in the possession of the plaintiffs. A copy of the plaint has been filed as Annexure-1 which indicates that the disputed property is a plot over which residential constructions have been raised that belonged to Late Kamta Prasad, the real brother of the petitioners-plaintiffs. 2. The sole respondent is stated to be the daughter of the plaintiff/petitioner No. 1 - Bhajan Lal who got her name mutated over the said property in collusion with the revenue officials on the pretext of having inherited the same from her uncle and was attempting to sell of the same when the Suit came to be filed. Sri Kamta Prasad had died issue-less and, therefore, the plaintiffs-petitioners claimed that they being the brothers are entitled to claim the said property. 3. An application for interim relief was filed and an ad-interim injunction was granted on 6.1.2010 directing the parties to maintain status-quo and not to alienate the property in dispute. 4. Shortly, thereafter, application No. 30A-1 was filed by the plaintiffs praying that on account of the intervention of some respectable persons of the loc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... relied on the Supreme Court decision in the case of Rajendra Prasad Gupta v. Prakash Chandra Mishra and others, (2011) 2 SCC 705 : 2011 (3) AWC 2520 (SC), to support their stand apart from the other decisions which have been cited at the Bar. The revisional court, relying on the decision in the case of Smt. Raisa Sultana Begam and others v. Abdul Qadir and others, AIR 1966 All 318, held that once the right to withdraw has been exercised, the Suit will be presumed to have been abandoned and no further orders are required from the Court insofar as the plaintiff is concerned, who will be deemed to have abandoned the claim unconditionally. The revisional court accepted the contention of the defendant and upheld the order of the trial court against which the present writ petition has been filed. 9. The matter was heard on an earlier occasion and the following orders were passed on 21.11.2012 extracted hereunder: - Heard Sri Tripathi B.G. Bhai, learned counsel for the petitioners and Sri Amit Manohar learned counsel for the respondent -opposite party. The petitioners are plaintiffs in a Suit for permanent injunction where also a prayer has been made for restraining ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l court by following the decision of Smt. Raisa Sultana Begam (supra) and accordingly rejected the revision. Learned counsel for the petitioners contends that the aforesaid decisions have been rendered ignoring the provisions of Section 151, C.P.C. which have been found to be applicable and for which reliance is placed by the learned counsel for the petitioners on the decision of Rajendra Prasad Gupta (supra) to contend that the judgment clearly holds that an application praying for withdrawal of the application to abandon the Suit was maintainable. Sri Tripathi, therefore, submits that inspite of having noticed the said judgment, the revisional court has taken an erroneous view and, therefore, the impugned orders deserve to be set aside. Learned counsel has further relied on the decision in the case of Jet Ply Wood (P.) Ltd. and another v. Madhukar Nowlakha and others. (2006) 3 SCC 699 : 2006 (2) AWC 1466 (SC), which has relied on the judgment of Calcutta High Court in the case of Rameshwar Sarkar v. State of West Bengal and others, AIR 1986 Cal 19, to substantiate his submission that there is no specific provision for moving such an application under the Civil Procedure ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Thakur Prathvi Singh and others. AIR 2011 Raj 22; (vii) Mrs. Pushpa Devi v. Rajeev Kharbanda, AIR 2011 P & H 83; (viii) Kedar Nath and others v. Chandra Kiran and others, AIR 1962 All 263; and (ix) Vidhyadhar Dube and others v. Har Charan and others, AIR 1971 All 41. Having noticed the aforesaid decisions, there appears to be an apparent difference of opinion between the two judgments of the Apex Court in the case of K.S. Bhoopathy (supra) where in paragraph No. 10, the following opinion has been expressed: - 10. The present Rule which was introduced in place of the old Rule 1 by the Amendment Act of 1976 makes a distinction between absolute withdrawal which is termed as 'abandonment' and withdrawal with the permission of the Court. This clear distinction is maintained throughout in the substituted Rule by making appropriate changes in the wording of various sub-rules of Rule 1. To the contrary the judgment in the case of Rajendra Prasad Gupta (supra) clearly invokes the powers of Section 151. C.P.C. in favour of the petitioners plaintiffs. In the aforesaid circumstances, what appears is that the law laid down by the D....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een relied upon by the learned counsel for the petitioners-plaintiffs clearly carve out an exception to this abandonment under Order XXIII, Rule 1. The judgments clearly rule that an application for withdrawal, which has been filed, can be withdrawn by invoking Section 151 of C.P.C. It is settled that the provisions of Section 151 can be pressed into service where there is no provision under the Civil Procedure Code. The provisions for withdrawing a Suit unconditionally namely through abandonment is provided under Order XXIII, Rule 1. There is no provision for allowing an application to be filed for withdrawing such a withdrawal application. The question is, has the Legislature intended to prohibit the filing of such an application, and if the answer is in the positive, then the next question is whether the inherent powers under Section 151, C.P.C. can be invoked by the Court to allow such an application to be entertained. This is necessary as the consequences of abandonment are serious as they put a seal on all future claims. The question is if a person's intention is the regulating factor, then so long as the Suit is not consigned, cannot the litigant be permitted to alter hi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Since the matter is being heard in the background above, it would be appropriate that all further proceedings before the court below may remain stayed. Accordingly, until further orders of the Court, all further proceedings shall remain stayed. The parties are further directed neither to alienate nor change the property in dispute during the pendency of the writ petition. Put up on Monday. 10. Learned counsel for the parties thereafter have proceeded to advance their submissions by placing reliance on the decisions aforesaid as also other decisions that have been dealt with hereinafter. 11. Sri Tripathi, learned counsel for the plaintiffs petitioners submits that the right of the plaintiff to withdraw from a Suit also includes a right inherent to revoke such an intention, so long as the Court has not passed any orders and the matter is pending. He contends that such an application can be filed under Section 151, C.P.C. for which heavy reliance has been placed on all the decisions cited by him including the decision in the case of Rajendra Prasad Gupta (supra) and the Special Full Bench decision in the case of Sunni Central Board v. Sri Gopal Singh Visharad, 2010....
X X X X Extracts X X X X
X X X X Extracts X X X X
....explained by Sri Tripathi is that there can be cases where an application is fraudulently moved or misrepresented or even a case where a lawyer without instructions proceeds to withdraw the Suit. There can be also cases where a request for withdrawal is made under a mistaken belief and in such circumstances, the litigant has a right to rectify the error or in the case of fraud and misrepresentation has a right to get the application rejected for which powers of the Court are preserved under Section 151. C.P.C. 15. It is only after an order is passed by the Court, that such a change of intention may not be permissible so long as the Court does not pass an order after investigating the aforesaid facts. The mere moving of an application for withdrawal should not in all contingencies be accepted to be an expression of abandonment. 16. He contends that in the case of K.S. Bhoopathy (supra), the right to withdraw was at the stage of appeal and any observation made in the said judgment, does not lay down a contrary law to what has been said by the Apex Court in the case of Rajendra Prasad Gupta (supra). In the Full Bench decision of Sunni Central Board (supra), the law has been clea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....decided. For this, a permission of the Court is not necessary and no order is required for such withdrawal which is unilateral. 19. He has invited the attention of the Court to similar provisions under Order XXI, Rule 89(2) to contend that where the word withdrawal has been used, the order of the Court is not necessary and the withdrawal is complete which extinguishes the right of the plaintiff to further continue the Suit. He has further relied on the decision in the case of Shipping Corporation of India Ltd. v. Machado Brothers and others, AIR 2004 SC 2093, to contend that where the Statute is clearly prescribed and covers the field, then Section 151 of the Civil Procedure Code cannot be pressed into service. Reliance is placed on para 20 of the said decision to urge that such a course is impermissible, which can be supplemented by the proposition that if a procedure is prescribed in the Statute, then it has to be done in that manner alone and not otherwise. 20. Coming to the decisions cited on behalf of the petitioner's counsel, Sri Amit Manohar submits that the decision in the case Rajendra Prasad Gupta (supra) does not notice the earlier decision in the case of K.S. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied, - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff - (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ait for a formal adjudication. It is in the aforesaid context that the word abandonment, as used in Order XXIII, has to be understood. 26. The judgments, which have been relied upon by the learned counsel for the petitioners-plaintiffs, preserve a right in favour of the litigant to revoke the intention of withdrawal by inviting the Court to exercise powers under Section 151, C.P.C. The decision in the case of Rajendra Prasad Gupta (supra) clearly supports this proposition and the judgment of the Full Bench in the case of Sunni Central Board (supra) coupled with the decision in the case of M/s. Auto Oil Company (supra) also affirms the same. The judgment of Sunni Central Board (supra) also specifically overrules the view of the Allahabad High Court in the case of Raisa Sultana Begam (supra) and holds that it does not lay down the law correctly. It is, however, to be kept in mind that the judgment in the case of Sunni Central Board is under serious challenge that is pending scrutiny before the Apex Court. The Apex Court has stayed the operation of the judgment and decree passed by the Full Bench vide its order dated 9.5.2011 passed in Civil Appeal No. 10866-10867 of 2010. The extr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... XXIII are entirely different as discussed hereinabove. A litigant can surrender his right to contest a matter which is the essence of Order XXIII. The right to withdraw such an intention of surrender or revoke the same which can arise in the circumstances as discussed hereinabove is a different issue. These ingredients, therefore, in relation to the entire disclaimer of the claim is not comparable with the provisions of Order XXI, Rule 89(2) in a matter arising out of execution. 31. There is yet another aspect which requires consideration namely the consequences of such withdrawal which are unilateral and voluntarily. A litigant is precluded for all times to come from raising any similar issue or claiming any similar right. The consequences are, therefore, so absolute that before any opinion is expressed thereon, the legal right to waive a claim has to be assessed. It is true that a litigant has a right and an unqualified right to withdraw from a litigation but it is subject to certain conditions. The right to contest or seek a judicial remedy partakes the nature of the basic structure of the Constitution. It is controlled by law made by the Parliament and the right to seek a j....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment of a permission to move an application to withdraw the abandonment before orders are formally passed by the court terminating the proceedings. The authority of the court is retained to that extent so long as the proceedings are not formally consigned. 33. In the instant case, the application for withdrawal was immediately followed by an application to revoke the said withdrawal but the Court went on to frame issues and also allowed the parties to lead evidence without passing any orders on the withdrawal application. Thus, the parties were aware that the plaintiffs do not wish to withdraw from the litigation and the Court had proceeded accordingly. It appears that after almost one and a half year, the endorsement of "not pressed" was also made and without traversing the aforesaid facts, the trial court terminated the Suit permitting its withdrawal. The revisional court even though noticed the facts aforesaid yet upheld the order of the trial court on the basis of the Division Bench judgment in the case of Raisa Sultana Begam (supra) which already stands overruled by the Full Bench in the case of Sunni Central Board (supra) that does not appear to have been brought to its....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing any reason for not. following the Supreme Court decision in the case of Rajendra Prasad Gupta (supra). To say that the judgment is obiter would not be correct inasmuch as it would be appropriate to refer to paragraphs 1025 to 1035 of the decision in the case of Sunni Central Board (supra) that has considered all the judgments for the purpose of laying down the law on Order XXIII, Rule 1. It is, therefore, not a passing reference and the decision has been taken in the context of the plaintiffs having abandoned their rights to the land in dispute. Applying the principles in the case of Arun Kumar Agrawal (supra), this Court does not find the Full Bench decision to be obiter as it is a judicial pronouncement on a point that was taken and considered by the said Full Bench. 38. Coming to the facts of the present case and applying the aforesaid principles, the Court finds that the application was moved for withdrawing the Suit on the basis of an alleged compromise between the parties. Thus, it was an application for permitting the Suit to be withdrawn on the said premise. The plaintiff alleges that the defendant intended to resile back from the compromise which led to the filing o....