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 can permit withdrawal of suit at appellate stage which will have effect of divesting of rights under decree?

In the case of R. Rathnivel (supra), this Court has considered
the question as to whether at a stage where the rights of the parties
are crystallized can be divested of the rights under the decree simply
because of withdrawal of the suit at the appellate stage or not. This
Court has held as follows:-
“12. What is essential is that the matter must have been finally
decided so that it becomes conclusive as between the parties to the
suit in respect of the subject-matter of the suit with reference to
which relief is sought. It is at this stage that the rights of the parties
are crystallised and unless the decree is reversed, recalled, modified
or set aside, the parties cannot be divested of their rights under the
decree. Now, the decree can be recalled, reversed or set aside either
by the court which had passed it as in review, or by the appellate or
revisional court. Since withdrawal of suit at the appellate stage, if
allowed, would have the effect of destroying or nullifying the decree
affecting thereby rights of the parties which came to be vested under
the decree, it cannot be allowed as a matter of course but has to be
allowed rarely only when a strong case is made out. It is for this
reason that the proceedings either in appeal or in revision have to be
allowed to have a full trial on merits.”
This Court after referring to the various decisions of the High Courts
have come to the conclusion that where a decree passed by the trial
Court is challenged in appeal, it would not be open to the plaintiff, at
that stage, to withdraw the suit so as to destroy that decree. In para

22, this court held as under:-
“22. In view of the above discussion, it comes out that where a
decree passed by the trial court is challenged in appeal, it would not
be open to the plaintiff, at that stage, to withdraw the suit so as to
destroy that decree. The rights which have come to be vested in the
parties to the suit under the decree cannot be taken away by
withdrawal of the suit at that stage unless very strong reasons are
shown that the withdrawal would not affect or prejudice anybody’s
vested rights. The impugned judgment of the High Court in which a
contrary view has been expressed cannot be sustained.”
15) In Janatha Textiles (supra), this Court has held that it is an
established principle of law that in a third party auction-purchaser’s
interest in the auctioned property continues to be protected
notwithstanding that the underlying decree is subsequently set aside
or otherwise.
16) In Sneh Gupta (supra), this Court has held that a right to
withdraw a suit in the suitor would be unqualified, if no right has
been vested in any other party.
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8397 OF 2015

Avenue Supermarts Pvt. Ltd. V Mrs. Nischint Bhalla & Ors. 

Dated:OCTOBER 8, 2015.
Citation: 2015 SCCONLINESC 915,(2016) 15 SCC411

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When court will not allow withdrawal of suit at appellate stage?

Both these decisions, namely, the decision of the Allahabad High Court in Kedar Nath's case and Kanhaiya's case were followed by the Andhra Pradesh High Court in Thakur Balaram Singh vs. K. Achuta Rao and others, 1977 (2) A.P.L.J. 111, and it was held that though the plaintiff has an absolute right to withdraw his suit before the passing of a decree under Order 23 Rule 1(1) C.P.C. but permission to withdraw the suit at the appellate stage would be refused if it would have the effect of prejudicing or depriving any right which became vested in the respondents or had accrued to them by reason of the findings recorded by the trial court. The Allahabad decisions, referred to above, were followed by the Rajasthan High Court in Ram Dhan vs. Jagat Prasad Sethi and others, AIR 1982 Rajasthan 235, and Kasliwal, J.(as he then was) held that if the withdrawal of the suit at the appellate stage would have the effect of destroying the rights which had come to be vested in the defendant-respondents, the suit would not be permitted to be withdrawn. It was also held that though the plaintiff has an unqualified right to withdraw the suit under Order 23 Rule 1(1) C.P.C., he cannot be allowed to do so at the appellate stage.

Supreme Court of India

R.Rathinavel Chettiar And Anr vs Sivaraman And Ors on 31 March, 1999

Bench: S.Saghir Ahmad, D.P.Wadhwa

Citation: MANU/SC/0223/1999 : (1999) 4 SCC  89

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