Whether a party can file a revision if he has withdrawn the appeal without leave of court?

  It is a settled position that against an order dismissing an

eviction petition filed under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act, remedy is only by way of a revision petition under Section 25B(8) of the Delhi Rent Control Act. Petitioner appears to have been incorrectly advised to file an appeal and since the appeal itself was not maintainable, nothing prevents the petitioner from filing a revision petition under Section 25B(8) of the Delhi Rent Control Act. Petitioner does not need express permission or leave to file a revision under Section 25B(8) of the Delhi Rent Control Act.{Para 10}

11. In my view, no express leave or liberty is required by the

petitioner to file a revision petition after withdrawing his appeal which was filed before a wrong forum especially in view of the objections specifically having been taken by the respondent that the appeal was not maintainable and only a revision under Section 25B(8) of the Delhi Rent Control Act would lie required.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CM(M) 527/2020

RAGHUBIR KAUR Vs  SURESH KUMAR 

Coram: HON’BLE MR JUSTICE SANJEEV SACHDEVA

 Judgment delivered on: 10.12.2020

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Whether provision of withdrawal of suit with liberty to file fresh suit is applicable to appeal?

Based on the above, the ATMCD has concluded that the second appeal filed by the petitioner for the same property is barred by Order 23 Rule 1 CPC as no liberty was sought to file a fresh appeal if required.

25. Order 23 Rule 1 CPC reads as follows:-

"1. Withdrawal of suit or abandonment of part of claim. -- (1) 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:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An Application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect 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 suit or part of a claim, without the consent of the other plaintiffs."

26. Hence when a suit is likely to fail on account of a formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit, the court may grant permission to withdraw such suit with liberty to institute a fresh suit. Where the plaintiff withdraws a suit without permission as referred to in Sub Rule 3, he is precluded from instituting a fresh suit in respect of such subject matter.

29. The principles as above/the above provisions would normally apply to appeals/other proceedings. It is clear that the petitioner did not seek liberty to file a fresh appeal when the first appeal was withdrawn. Hence, to that extent there is no error in the impugned order.

IN THE HIGH COURT OF DELHI

W.P. (C) 9846/2018, CM Appl. 38370-38371/2018, 

Decided On: 06.05.2020

 Kamla Sharma  Vs.  North Delhi Municipal Corporation

Hon'ble Judges/Coram:

Jayant Nath, J.

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Whether appellate court can allow the appeal even if one of the appellants have applied for withdrawal of appeal?

J.K. Bhatia Vs. A.K. Bhatia MANU/DE/8638/2007 : 144 (2007) DLT 28 holding that since Order XXIII Rule 1 (5) mandates that consent of co-plaintiffs for seeking withdrawal of suit or part thereof is mandatory, unless there is consent of other plaintiffs, withdrawal of suit on behalf of one plaintiff cannot take place.

 Applying the aforesaid law, in the present case, the First Appellate Court did not allow the application for withdrawal of the First Appeal by plaintiff no. 1 Ram Chander but transposed the plaintiff no. 1 Ram Chander as respondent in the First Appeal. The reliance by the senior counsel for the respondents no. 4(i) and 4(ii)/plaintiffs on J.K. Bhatia supra, in turn referring to Order XXIII Rule 1(5) CPC is apposite. The suit from which the First Appeal arose as well as this Second Appeal arises, was filed not by plaintiff no. 1 Ram Chander alone but by four plaintiffs including plaintiff no. 1 Ram Chander. Order XXIII Rule 1(5) provides that nothing in Order XXIII Rule 1 shall be deemed to authorize the Court to permit one of the several plaintiffs to abandon a suit or part of a claim under Order XXIII Rule 1(1) or to withdraw under Order XXIII Rule 1(3), the suit or part of the claim, without the consent of the other plaintiff. The First Appellate Court, though without referring to the said provision but perhaps owing thereto, did not allow the application of plaintiff no. 1 Ram Chander for withdrawal of the First Appeal. Once there was such a bar of law, the argument of the counsel for the appellants/defendants that the First Appellate Court was incompetent to pass a decree for ejectment with respect to plots no. 3 to 6 and 8 to 10, in favour of plaintiff no. 1 Ram Chander, falls to the ground. 

IN THE HIGH COURT OF DELHI

RSA No. 242/2005.

Decided On: 05.05.2020

Baldev Singh  Vs.  Ram Chander and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Whether court should permit withdrawal of appeal on application of respondent?

The MUDA felt aggrieved and filed intra Court
appeals before the Division Bench out of which these
SLPs arise. In the appeals, the writ petitioners as
respondents, filed an application (I.A. No.11 of 2016)
and prayed therein for dismissal of the MUDA’s
appeals as having rendered infructuous. It was
contended that the MUDA has resolved on

02.07.2016 to drop the lands in question from the
acquisition proceedings and, therefore, in the light of
such decision having been taken, there is no need to
examine the legality and correctness of the order of
the Single Judge impugned in the appeals on merits.
11) By impugned order in both the matters, the
Division Bench dismissed the appeals as not pressed
and withdrawn. The order impugned dated
09.11.2016 reads as under:
“An application is moved by the respondents
seeking for dismissal of the writ appeals on
the ground that the Mysore Urban
Development Authority (for short “MUDA”)
decided, in their Board meeting on July 2,
2016, to drop the lands covered by this
litigation from the acquisition process. A
copy of the resolution is annexed to the
application.
2. After hearing Mr. Uday Holla, learned senior
advocate appearing for the respondents and
Mr. P.S. Manjunath, learned advocate
appearing for the appellants, we have got a
clear indication that the authorities have
decided not to proceed with the writ appeals.

3. Therefore, the writ appeals are dismissed as
withdrawn.
4. It shall be open to the authorities to
proceed further in the matter. We, however,
express no opinion.”
12) It is against this order, the MUDA has felt
aggrieved and filed the present appeals by way of
special leave before this Court.
 In our opinion, neither there was any express
prayer made by the MUDA and nor it could be
inferred from the document relied on by the Division
Bench at the instance of respondents (writ
petitioners) for forming an opinion “not to press the
appeal”. In other words, the opinion formed by the
High Court for dismissing the appeals “as not
pressed” had no basis. Such dismissal, in our view,
certainly deprived the MUDA of their right to
prosecute the appeals on merits.
28) A right of appeal is a valuable right of a litigant.
He is entitled to prosecute this right as it enables him
to seek adjudication of the issues on merits, which
are subject matter of the appeal by the Appellate
Court. He can, however, forgo such right but it has to
be done with express authority and free will. The
respondents, however, cannot compel the appellant
to give up the right of prosecuting the appeal unless

the respondents are able to show any express
provision in law in that behalf or valid reasons
acceptable in law which deprive the appellant from
prosecuting his grievance in appeal.
29) If the appellant is a juristic entity created under
the Act, they have to ensure strict compliance of the
relevant provisions of the Act under which they are
created coupled with ensuring compliance of relevant
provisions of the Code of Civil Procedure for forgoing
their right to prosecute the appeal on merits.
30) If, for some reasons, there are two rival groups
in a juristic entity, one prays for withdrawal and the
other insisting for hearing the appeal then it is the
duty of the Court to first resolve this issue in the
light of the relevant provisions of law and then
proceed to decide the appeal accordingly. Similarly,
when such prayer is made at the instance of the
respondent and is opposed by the appellant, the

same has to be dealt with strictly in accordance with
law by the Appellate Court.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9182-9188 OF 2018

Mysore Urban Development Authority  Vs K.M. Chikkathayamma & Ors. 

Dated: September 07, 2018

Abhay Manohar Sapre, J.

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Whether withdrawal of appeal can be challenged by non party to appeal?

When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a `compromise' was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of any non-party, as there is no appealable order or decree.

  Reportable

Supreme Court of India

Hussainbhai Allarakhbhai ... vs State Of Gujarat & Ors on 31 August, 2010

Bench: R.V. Raveendran, H.L. Gokhale

                                               
Citation:2010(8)SCC759

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