Wednesday, 15 April 2020

Whether an application for withdrawal of a withdrawal application is maintainable?

Here the suit had been instituted by three plaintiffs and only two filed an application to withdraw the suit. Such application in any case, could not have been allowed, unless, the plaintiff no. 2 consented to the withdrawal. Even before the Court below, a specific application was filed by the plaintiff no. 2 objecting to application for withdrawal of the suit. He therefore, had not consented to the withdrawal of the suit by the plaintiffs 1 and 3.

28. Secondly, the part of the judgment cited, extracted herein-above, draws a distinction between a withdrawal, in fact and a withdrawal, in law, will also come to the aid of the respondents in this revision.

29. In the case at hand, there was no compliance of Order 23 Rule 1(5) CPC. Therefore, even if contention of counsel for the revisionist is accepted that the application of plaintiffs 1 and 3 was an application for withdrawal, simplicitor, it would amount to a withdrawal only in fact and not in law. The larger Bench in the judgment cited has itself observed that the reference being answered by it was not as regards a case where, there was no withdrawal in law.For the same reason, the application of the plaintiffs 1 & 3 and the defendant 70 Ka was at best an application for withdrawal which did not result in a withdrawal in law, due to non-compliance of Order 23 Rule 1(5) CPC. The said application, by its mere filing did not amount to withdrawal of the suit.


IN THE HIGH COURT OF ALLAHABAD

Civil Revision No. 542 of 2009

Decided On: 12.11.2018

 Mohan Lal  Vs.  Nain Singh 

Hon'ble Judges/Coram:
Anjani Kumar Mishra, J.

Citation: AIR 2020(NOC) 60 All


1. Heard Shri Ravi Kiran Jain, Senior Advocate for the revisionist and Shri Dharmveer Jaiswal for the opposite party.

2. The instant revision arises out of a suit for specific performance of an agreement for sell and is directed against the order of the Additional Civil Judge (Senior Division), Ghaziabad dated 01.12.2009.

3. By the order impugned, the Civil Judge (Senior Division) has rejected an application 70-Ka, which had been filed by the plaintiffs 1 and 3 and the defendant. He has, however, allowed application No. 75-Ga filed by the plaintiffs 1 and 3 resiling from the agreement contained in application 70-ka.

4. Application 6-Ga(2) filed by the defendant that the agreement contained in application 70-Ka be verified by the Court and the application 75-Ga praying for opportunity to adduce evidence to show that the agreement contained in application 70-Ka, was not obtained by fraud has been simultaneously rejected.

5. The facts of the case briefly stated are that three plaintiffs filed the suit for specific performance of an agreement to sell, wherein the sale consideration fixed was Rs. 7,8,42,000/- and the earnest money of Rs. 5 Lacs was stated to have been paid to the defendant.

6. During the pendency of the suit, Application-70Ka was filed by the plaintiffs 1 & 3 and the defendant praying that the suit be dismissed as the earnest money paid by them had been returned by the defendant and that the defendant could sell the property, subject matter of the agreement to sell, in favour of any person.

7. Subsequently, the plaintiffs 1 and 3 filed an application stating therein, that the agreement contained in application 70-Ka was not acceptable to them as their signatures thereon, had been obtained by fraud. It has been agreed that the defendant will executed a sale deed in favour of the applicants and only thereafter, the said compromise agreement would be filed in Court. However, the defendant did not execute any sale deed and instead has filed the application 70-ka. It was therefore, prayed that the suit be decided on its merit.

8. The defendant filed an application that the compromise agreement filed with application 70-ka may be verified by the Court as it was genuine and had been signed by the plaintiffs 1 and 3, after having read it and after having received back earnest money paid by them. subsequently, they had turned dishonest.

9. The defendant also filed application 70-G(2) for opportunity to adduce evidence to show that the agreement 70-Ka was not obtained fraudulently.

10. The plaintiff no. 2 filed an application that the alleged agreement in application 70-ka was fraudulent and had been filed with a view to grant undue benefit to the defendant and cause harm to him, inasmuch as, the agreement to sell provided a joint sale deed being executed in favour of the plaintiffs 1, 2 and 3. Therefore, the interest of the plaintiff no. 2 was also involved in the suit, which could not be withdrawn unilaterally, by the other two plaintiffs.

11. Assailing the order impugned, the contention of Shri Ravi Kiran Jain is that once an application is filed to withdraw from the suit, nothing further remains to be done by the Court. A party filing the suit has an absolute right to withdraw from the suit filed by him, at any stage prior to its final decision. The application filed 70-ka was such an unilateral act of the plaintiffs 1 and 3. The Court below has committed manifest illegality in rejecting the said application. The order is therefore, vitiated and liable to be set aside.

12. The second contention raised is that the application 75-Ga, which has been allowed by the trial Court was not supported by any affidavit. In case, they were alleging fraud in obtaining their signatures over application 70-ka, their application 75-C(2) should have been accompanied by an affidavit. Therefore, also the impugned order is vitiated.

13. He has also contended that the application 70-Ka being an application to withdraw the suit, simplicitor, the Court below has committed patent illegality in treating the same to be a compromise.

14. He has also placed reliance upon the decision of this Court in Raisa Sultana Begam Vs. Abdul Qadir, MANU/UP/0103/1966 : AIR 1966 Alld 318.

15. Counsel appearing for the opposite party has supported the impugned order and had submitted that there was no consent of the opposite party no. 2 to withdraw the suit. The agreement to sell, specific performance whereof was sought by means of the suit in question was in favour of three persons and therefore, also the withdrawal application could not have been allowed.

16. He has placed reliance upon the judgment in Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others, MANU/SC/0211/2011 : 2011(2) Supreme Court Cases 705, wherein it has been held as follows:

" Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed."

17. I have considered the submission made by counsel for the parties and perused the record as also the judgment cited, wherein it has been held that an application for withdrawal of a withdrawal application is maintainable. This is what has been done by the order impugned, which therefore, is liable to be affirmed.

18. The impugned orders have been passed on the reasoning that in the alleged agreement 70-Ka, the plaintiff no. 2 was not a party and the suit was not liable to be dismissed on the basis of the agreement between the other two plaintiffs and the defendants.

19. The Court below also observed that the agreement had not been verified by the Court and as on date, the plaintiffs 1 and 3 were not accepting it. It was not open for the Court to force a party to enter into a compromise or to force a party to agree to the agreement 70-ka.

20. It is no doubt true that the judgment cited by counsel for the revisionist has held that the plaintiffs have been given an absolutely right to withdraw from a suit at any stage and that the Court has no control over this act of withdrawal.

21. It has also been held that the right to withdraw has been expressly conferred by Rule 1 of order 23 and there is no provision conferring a right to revoke the withdrawal and that there is no justification for saying that the right to withdraw includes in itself a right to revoke the withdrawal.

22. In the last part of the judgment cited, it has been observed as follows-

"We have answered the question on the assumption that there is withdrawal in fact as well as in law. The question referred to us would not arise if there is withdrawal in fact but not in law. The contention of Ghufran Ahmad is not that he revokes his application for withdrawal of his suit but that there was no withdrawal of his suit in law because the withdrawal that was there in fact was vitiated by the fraud practised upon him by the opposite parties. His case is that he never withdrew his suit, which is quite distinct from the case that he withdrew the suit but now wants to revoke or withdraw the withdrawal. In the former case the suit was never withdrawn at all and in the latter case it was withdrawn but the withdrawal is sought to be revoked, The question that we have answered arises in the latter case and not in the former case."

23. The arguments raised by counsel for the revisionist fund complete support from the judgment cited by him. Yet this Court is of the opinion that the revision cannot be allowed relying upon the said judgment and on the submissions of counsel for the revisionist, for two reasons.

24. The judgment cited appears to have been passed upon a reference made to a larger Bench. This reference order quoted in the judgment reads as follows-

"Can the plaintiff who has already moved an application under Sub-rule (1) of Order XXIII, Rule 1, C.P.C. 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 from the file."

25. In the judgment, there is a passing reference to order 23 Rule 1(5) but there is no discussion regarding this provision, which reads as follows-

"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 suit or part of a claim, without the consent of the other plaintiffs."

26. The absence of any discussion regarding Order 23 Rule 1(5) CPC is probably because the said provision had no application in the case being decided.

27. The suit in the judgment cited appears to have been filed by a single plaintiff. Such is not the position in the case at hand. Here the suit had been instituted by three plaintiffs and only two filed an application to withdraw the suit. Such application in any case, could not have been allowed, unless, the plaintiff no. 2 consented to the withdrawal. Even before the Court below, a specific application was filed by the plaintiff no. 2 objecting to application for withdrawal of the suit. He therefore, had not consented to the withdrawal of the suit by the plaintiffs 1 and 3.

28. Secondly, the part of the judgment cited, extracted herein-above, draws a distinction between a withdrawal, in fact and a withdrawal, in law, will also come to the aid of the respondents in this revision.

29. In the case at hand, there was no compliance of Order 23 Rule 1(5) CPC. Therefore, even if contention of counsel for the revisionist is accepted that the application of plaintiffs 1 and 3 was an application for withdrawal, simplicitor, it would amount to a withdrawal only in fact and not in law. The larger Bench in the judgment cited has itself observed that the reference being answered by it was not as regards a case where, there was no withdrawal in law.

30. Under the circumstances and for the reasons given above, this Court is constrained to hold that the revisionist cannot derive any benefit from the judgment cited on his behalf as it is not on the issue involved herein.

31. On the contrary, the decision of the Apex Court cited by the opposite party totally supports the impugned order. For the same reason, the application of the plaintiffs 1 & 3 and the defendant 70 Ka was at best an application for withdrawal which did not result in a withdrawal in law, due to non-compliance of Order 23 Rule 1(5) CPC. The said application, by its mere filing did not amount to withdrawal of the suit.

32. In view of what has been stated above, the revision is found to be without merit. The order impugned calls for no interference. The revision is therefore, dismissed.


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