Gujarat High Court
Vishwesh Jitendra Gajjar vs Neha Himanshu Gajjar on 30 June, 2025
NEUTRAL CITATION
C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8909 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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VISHWESH JITENDRA GAJJAR
Versus
NEHA HIMANSHU GAJJAR & ORS.
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Appearance:
MR UDAY R BHATT(192) for the Petitioner(s) No. 1
ADITYA R GUNDECHA(8869) for the Respondent(s) No. 2
LAW OFFICER BRANCH(420) for the Respondent(s) No. 3
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 30/06/2025
ORAL JUDGMENT
1. The present writ application is filed under Articles 14, 19, 21, 226 and 227 of the Constitution of India, having challenged two sets of orders passed by the City Civil Court, Ahmedabad, by way of a singular writ application. As such, on this account alone, this Court would have dismissed the matter Page 1 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined but, without being too technical, allowed the learned advocate for the petitioner to argue the matter on its merits.
2. At the outset, it is required to be observed that though this application is filed under various Articles of the Constitution of India and has also joined Ahmedabad City Civil Court as Respondent no.3, in light of the direct and clear pronouncement of the Honourable Supreme Court of India referred herein after, orders impugned being passed by civil court, such orders can be challenged only by way of application filed under Article 227 of the Constitution of India. It would be apt to refer in the case of Radhey Shyam & Anr. vs Chhabi Nath & Ors., reported in 2015 (5) SCC 423, wherein, in para 27, it was held thus:-
"Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article
226."
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3. So, in view of the aforesaid, the present writ application needs to be treated as filed under Article 227 of the Constitution of India.
4. At the outset, it is required to be observed that the conduct of the petitioner, and so also his lawyer, who has consumed the time of this Court by unnecessary reading the plaint and other documents which are not required to be read to decide the issue raised in the application and, despite drawing attention to the legal position of law in regard to the filing of a withdrawal pursis by a plaintiff and its effect, instead of answering and replying to such position of law, unnecessarily lingered the hearing of the matter wherein, during the course of his submission, he made certain unwarranted remarks against the Trial Court concerned, who is also joined as Respondent no.3 in the present application.
5. When this Court warned the learned advocate to face the consequences for such unwarranted remarks made during the course of his submission, and so also for unnecessarily consuming the precious time of the Court, who is already Page 3 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined overburdened, but at the cost of other litigants, learned advocate, as on his style, read the pleadings made in the impugned application and so also the plaint. The behaviour of the learned advocate is deplorable, making unwarranted remarks against the Trial Court concerned to the effect that, in haste and to get an early and slipshod manner and for easy disposal of the suit, without giving any opportunity of hearing to the petitioner, it disposed of the suit. Such an unpardonable behaviour of the learned advocate, who is one of the senior members of the Bar of this High Court, is required to be deprecated in all respects. The Court keeps its restraint by not sending the matter to the Bar Council to take appropriate action against such behaviour of the learned advocate appearing for the petitioner but puts a word of caution that, in the future, if he repeats such behaviour, the Court will not hesitate to refer the matter to the Bar Council for appropriate action.
6. As such, the present application is filed seeking following reliefs:-
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NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined "5. It is therefore it is prayed that the Hon'ble Court be pleased to issue appropriate Writ/s including Writ/s of mandamus /certiorari / prohibition or any other Writ, Order/s or Direction/s in the nature of an appropriate Writ:
5.1 To admit this Petition and call for the Records and Proceedings of the City Suit no. CS 1353 of 2014, and the Civil Miscellaneous Application no. CMADC 613 of 2021 in Civil Suit no. CS 1353 of 2014 from Hon'ble Ahmedabad City Civil Court at Ahmedabad.
5.2 To quash and set aside Order dtd. 27th Sep. 2021 in the Civil Suit no. CS 1353 of 2014 (Annexure B) and restore the said suit to file of the Learned Trial Court.
5.3 To quash and set aside Order dtd. 19th Oct. 2021 in the Civil Miscellaneous Application no. CMADC 613 of 2021 (Annexure F) and allow the same.
5.4 To hold that the rights of the Petitioner inter alia under Article 14, 19 and 21 of the Constitution of India stand violated, pass such and other Order/s deemed fit and proper for redressal.
5.5 To hold on the facts and circumstances wherein all fundamental rights of the Petitioner are violated, pass such other and further Order/s deemed fit and proper.
5.6 To hold that and be pleased to Order initiation of appropriate Criminal legal actions against the Opponent/Respondent no. 1, and others directly / indirectly, involved on facts and circumstances of the Case.
5.7 To hold that and be pleased to order initiation of appropriate legal actions against all concerned for the illegalities committed by them against the interests of the Petitioner and the Society at large, as may be deemed fit and proper on the facts and in the circumstances of the case.
5.8 To allow, grant and provide cost of the Petition to the Petitioner in the peculiar facts and circumstances of the case.
5.9 To pass any other and further Order/s as may be deemed fit, just and necessary by this Hon'ble Court in the facts and circumstances of the Case."Page 5 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025
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7. At the outset, before adverting to the facts germane in the matter, it is required to be observed that in light of the aforesaid pronouncement of the Full Bench in the case of Radhey Shyam (supra), Respondent no.3, who is a Trial Court, having been wrongly joined in the present application, needs to be spared from the present application. Nonetheless, this Court having issued notice to all respondents vide its order dated 26th September 2023, learned advocate Mr. Hamesh Naidu, appearing for Respondent no.3 - the Trial Court, pointed out to this Court that prayer 5.7 made in the present application affects its interest, as the petitioner is praying to initiate appropriate legal action against all concerned for illegalities committed by them which includes respondent No.3, and to that extent, he may be allowed to assist this Court.
8. True, the prayer made in para 5.7 of the present application is an omnibus prayer and is made and worded in a manner which may include Respondent no.3, i.e., the Trial Court, and such prayer could not have been made by the petitioner, at least against the Trial Court. But as observed Page 6 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined hereinabove, during the course of his submission, several unwarranted facts/contentions/allegations were made by the learned advocate against the Trial Court concerned, which are highly irresponsible statements and requires to be deprecated with all humility at my command.
9. When the learned advocate for the petitioner was confronted with the aforesaid, having realized that the comments and allegations made by him during the course of his submission and/or made in the pleading are not substantiated, he requested this Court to allow the petitioner to drop such prayer and to delete Respondent no.3 from the array of parties. According to the learned advocate, to maintain the present petition under Article 226 of the Constitution of India, he had joined Respondent no.3, i.e., the Trial Court, but had not intended to seek any legal action against the Trial Court, though not clarified specifically in prayer clause 5.7.
10. This Court would have accepted such request made by the learned advocate for the petitioner, had it been done at the first instance, by considering that it was inadvertently done Page 7 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined by the petitioner under a mistaken belief, but not when caught at the fag of hearing as its pointed out by the learned advocate appearing for Respondent no.3 in his arguments.
11. Such misadventure on the part of the petitioner, whether consciously or unconsciously done, requires to be set at naught with a strong and loud message to such an unscrupulous litigant who dares to question the dignity of the Court by making any sort of allegation whenever he thinks it fit to do so made then tender apology when caught, according to my view, such apology is without any remorse not to be accepted without sending clear message including imposing cost.
12. This Court, being a Constitutional Court, is not only required to stop such kind of litigant but to send a stern message to society, is required to impose a heavy cost upon such an unscrupulous litigant who is trying to malign the image of the Court in the minds of the public at large and has tried to browbeat the Trial Court by joining it in the proceeding where the Trial Court was not required to be joined. This Court would do so in later part of its judgement. Page 8 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025
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13. Now, adverting back to the facts of the present case, which are as under:-
13.1. The petitioner herein is the sole defendant in Regular Civil Suit No. 1353 of 2014, filed by Respondent Nos. 1 and 2 herein, which was withdrawn unconditionally by Respondent no.1 herein - plaintiff no.1, having submitted withdrawal pursis on 23rd September, 2021.
13.2. The suit appears to have been filed seeking prohibitory injunction against the defendant and his agent, thereby praying that the defendant and his agent be restrained from entering into the business premises of the plaintiffs and not to cause damage to the machinery, etc., lying inside the business premises. The defendant appears to have filed a counterclaim in the suit, which is also pending as on today. 13.3. Plaintiff no.2 is reported to have died on 03.05.2021, thereafter, Plaintiff no.1, who happens to be the wife of plaintiff no.2, filed the impugned withdrawal pursis below Exhibit 51, wherein the defendant has endorsed that the counterclaim is pending and that he has an objection which is Page 9 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined to be decided. Such endorsement appears to have been put on the withdrawal pursis by the defendant on 24.09.2021. 13.4. The Trial Court, vide its order dated 27th September, 2021, has allowed the plaintiff to withdraw the suit unconditionally as prayed for as per the withdrawal pursis. At the same time, in the impugned order itself, the Trial Court has observed that the counterclaim filed by the defendant shall survive and be proceeded accordingly.
13.5. Having come to know about such order, initially, the defendant had filed an application below Exhibit 53 on 14th October, 2021, signed by the learned advocate of the petitioner as well as the petitioner himself, wherein it has been alleged that Plaintiff no.2 already died and he is survived by his mother and son, apart from Plaintiff no.1; without joining them on record, they could not have been deprived of their rights in the suit, and such withdrawal pursis could not have been filed and so, not maintainable.
13.6. It is also stated that the defendant happens to be the brother of Plaintiff no.2 and, being heir of Plaintiff no.2, has a Page 10 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined right to appear in the matter being his one of legal heirs, knowing fully well that he is not a Class-I legal heir of Plaintiff no.2, only Class-I legal heirs of plaintiff No.2 who are alive have a right to appear in the suit if so desire. The Trial Court appears to have not taken cognizance of such application, having not passed any order on it. 13.7. Thereafter, the defendant had preferred another application on 14th October 2021, filed below Exhibit 54 in the aforesaid suit, requesting the Trial Court to recall its order dated 27th September, 2021. The Trial Court appears to have advised the defendant to file an appropriate application as per rule. So, Civil Miscellaneous Application No. 613 of 2021 came to be filed in the aforesaid suit, which was claimed to have been filed under Order 23 read with Section 151 of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC"). 13.8. The Trial Court, after hearing the parties, has ultimately rejected such application of the defendant vide its order dated 19.10.2022. Being aggrieved and dissatisfied with the order dated 27th September 2021 passed below Exhibit 1 Page 11 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined in Civil Suit No. 1353 of 2014 and so also, the order dated 19th October, 2022 passed in Civil Miscellaneous Application No. 613 of 2021 in Regular Civil Suit No. 1353 of 2014, the present application has been filed by the defendant.
14. As observed hereinabove, by way of present application, two sets of different orders could not have been challenged by the petitioner as the grounds of their challenge would be totally different but filed it. Nonetheless, this Court, to avoid any technicality in this particular case, has not thrown out the petitioner on this ground alone.
15. SUBMISSION OF THE PETITIONER-ORIGINAL DEFENDANT 15.1. Learned advocate Mr. Bhatt, appearing for the petitioner, would submit that without proper application of mind, in haste, and to get an easy disposal, the Trial Court has wrongly exercised its power, thereby permitting the plaintiffs to withdraw the suit unconditionally. 15.2. Learned advocate Mr. Bhatt, would further submit that in flagrant violation of the principles of natural justice, without Page 12 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined giving any opportunity of hearing to the defendant, the impugned order below Exhibit 1 was passed by the Trial Court, which requires to be quashed and set aside. 15.3. Learned advocate Mr. Bhatt would further submit that the orders impugned are not only erroneous and perverse but also contrary to the settled principles of law and so also the provisions of the CPC, and require to be interfered with by this Court.
15.4. Learned advocate, Mr. Bhatt, would further submit that by allowing the plaintiffs to withdraw the suit unconditionally, a vested right of the defendant to pursue his counterclaim would be jeopardized, and in fact, the Trial Court has committed a jurisdictional error by allowing the plaintiffs to withdraw the suit unconditionally.
15.5. Learned advocate Mr. Bhatt, would further submit that as per the record, Plaintiff no.1 had already divorced Plaintiff no.2 prior to the filing of the withdrawal pursis. In fact, when it was brought to the notice of the Trial Court that Plaintiff no.2 died on 03.05.2021, whereas the withdrawal pursis was Page 13 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined filed on 23rd September 2021, such withdrawal of the suit at the instance of Plaintiff no.1 could not have been entertained.
The right of other legal heirs of Plaintiff no.2 to pursue the claim made by Plaintiff no.2 would get affected by such withdrawal.
15.6. Learned advocate Mr. Bhatt, would further submit that as per the contents of the withdrawal pursis, the plaintiffs having handed over the suit property to its original owner, the suit was requested to be withdrawn by the plaintiffs unconditionally, whereas the subject matter of the suit is totally different, as the plaintiffs were seeking prohibitory injunctions against the defendant.
15.7. It is submitted that considering the averments made in the plaint, which are bereft of any particulars and unsupported by evidence produced by the plaintiffs in relation to the allegations made in the plaint, it requires to be dismissed on its merits, rather than allowing the plaintiffs to withdraw the suit unconditionally.
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15.9. It is submitted that no separate number to the counterclaim was given by the Trial Court; thereby, it was incumbent upon the Trial Court not to allow the plaintiff to withdraw the suit as it would directly affect the vested right of the defendant.
15.10. Lastly, learned advocate Mr. Bhatt, would further submit that Plaintiff no.2 having died during the pendency of Page 15 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined the suit, his legal heirs, being the mother and son of Plaintiff no.2, should have been joined in the suit and been made aware of the withdrawal of the suit, and not having done so, it would amount to procedural illegality by the Trial Court which requires to be reviewed by allowing the impugned application, being Civil Miscellaneous Application No. 613 of 2021 but its not done so resulted into miscarriage of justice. 15.11. To buttress his argument, learned advocate Mr. Bhatt, has relied upon the following decisions:-
(i) Bijayananda Patnaik Vs Satrughna Sahu And Others Reported In AIR 1963 SC 1566 (Para -7)
(ii) Hulas Rai Baij Nath Vs Firm K. B. Bass & Co Reported In AIR 1968 SC 111 (para -2)
(iii) Narharibhai Chaturbhai Patel; Nimbalkar Enterprises Private Limited; Bharatbhai Chimanlal Patel Versus Ashish Mukundlal Shah; Inter Overseas Real Estate Limited; Mukundlal Raichand Shah; Prafulbhai Chimanlal Patel; Registrar Reported In 2022 (4) GLR 2514 (Para - 16 & 19)
(iv) Sanjaybhai Lakhabhai Oderdra Versus Mineshbai Bhogilal Patel & 2 Other(S) In SCA 3234/2024 Dated 02.09.02023 (Para -
9 & 10).
15.12. Making the above submission, learned advocate Mr. Bhatt, would request this Court to allow the present application.
16. SUBMISSION OF THE RESPONDENTS Page 16 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined 16.1. Learned advocate, Mr.Aditya R Gundecha, for the private respondents/plaintiffs, would submit that the present application is nothing but sheer abuse of the process of law by the defendant, wherein he has not only made unwarranted remarks against the procedure undertaken by the Trial Court but has also alleged against the plaintiffs, which is uncalled for.
16.2. Learned advocate, Mr. Gundecha, would further submit that as per the settled legal position of law, and as per Order 23 Rule 1 of the CPC, which allows the plaintiffs to withdraw the suit unconditionally, when such request is made by the plaintiffs, the Court has to accept such request. 16.3. Learned advocate, Mr. Gundecha, would further submit that all submissions made by learned advocate Mr. Bhatt are bereft of any legal support, and out of frustration on the part of the defendant, the plaintiff is dragged up to this Court in unwanted litigation, which may be dismissed with costs. 16.4. Learned advocate Mr. Gundecha, would further submit that as per settled law, once withdrawal pursis is filed by the Page 17 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined plaintiffs declaring to the Court that the plaintiff wants to unconditionally withdraw the suit, the suit is deemed to have been withdrawn on the same day. It is submitted that the question of observance of the principles of natural justice is uncalled for, except to the effect that the defendant may claim costs from the plaintiffs against the unconditional withdrawal of the suit, which was not prayed for by the defendant in the present case.
16.5. Learned advocate Mr. Gundecha, would further submit that the defendant cannot complain against the order passed below Exhibit 1 as prayed for, as the defendant had already put his endorsement on the withdrawal pursis filed below Exhibit 51, and later on, making a complaint about its non- receipt and not affording an opportunity of hearing is nothing but a false statement and allegation made against the plaintiffs and the Trial Court concerned, which may not be accepted by this Court in the absence of any material placed on record. 16.6. Lastly, advocate Mr. Gundecha would submit that the plaintiff has already suffered a lot because of sheer harassment Page 18 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined on the part of the defendant by filing frivolous applications before the Trial Court and this Court and the surviving plaintiff, being a lady, may be spared from such harassment by this Court.
16.7. To buttress his argument, learned advocate Mr. Gundecha would rely upon the decision of this Court in the case of Jayantibhai @ Jayendrasingh Thakor vs. Dalsukhbhai Ukabhai Chunara and others in Special Civil Application No. 7645 of 2023 decided on 16.06.2023.
17. Per Contra, Learned advocate Mr.Hamesh Naidu appearing for respondent no.3 - Trial Court, as such, has stated that the controversy germane in the matter is also covered by several decisions of the Honourable Apex Court, which have already been referred to by this Court in its judgment and order dated 16.06.2023 passed in the case of Jayantibhai (supra).
17.1. Nonetheless, learned advocate Mr. Naidu, as an officer of the Court, has assisted and submitted that the judgments which are cited by learned advocate Mr. Bhatt are not Page 19 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined applicable to the facts of the present case; in fact, there is a total misreading of such judgments by learned advocate Mr. Bhatt.
17.2. At last, learned advocate Mr. Naidu would request this Court that at least Respondent no.3 - Trial Court may be absolved from the present litigation, having not only been wrongly joined by the petitioner, but the prayer made in para 5.7 against it is unwarranted and uncalled for, as the Trial Court is least concerned with the dispute between the parties. 17.3. Making the above submission, the learned advocates appearing for the respondents request this Court to dismiss the present application.
18. Heard the learned advocate appearing for the petitioner Mr. Uday R. Bhatt, learned advocate Mr. Mr.Aditya R Gundecha for respondent No.2 and learned advocate Mr.Hamesh C. Naidu for respondent no.3.
19. No other and further submissions were made.
20. POINT FOR DETERMINATION Page 20 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined 20.1. Whether, in the facts and circumstances of the case, the objections raised by the defendant against the unconditional withdrawal of the suit by the plaintiff are sustainable in law?
20.2. Whether, in the facts and circumstances of the case, any legality, irregularity, and/or judicial error was committed by the Trial Court while passing the impugned orders? 20.3. Whether, in the facts and circumstances of the case, Trial Court requires to be joined as respondent No.3 in present application and is there any abuse of process of law at instance of petitioner, if yes, requires to be saddled with cost?
21. ANALYSIS
22. At the outset, it is required to be observed that the present litigation at the instance of the defendant would show that the quiets given by the plaintiffs to their suit is not digested by the defendant, and which is confirmed by the various applications filed by the defendant before the Trial Court and so also argued before this Court. Page 21 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025
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23. Nonetheless, this Court cannot be oblivious of the fact that mere objection and/or resistance by the defendant against the unconditional withdrawal of the suit prayed by the plaintiffs would not deter this Court to succumb to such attempt of ill-informed and misguided defendant.
24. Now, adverting to the issue germane in the matter, the plaintiffs had filed the suit seeking prohibitory injunction against the defendant, and during the pendency of the suit, Plaintiff no.2, who happens to be the real brother of the defendant, died on 03.05.2021, whereas Plaintiff no.1, who happens to be the wife of Plaintiff no.2, decided to withdraw the suit unconditionally, thereby submitted withdrawal purshis on 23rd September, 2021. The impugned withdrawal purshis, filed at Exhibit 51, would clearly indicate that the defendant was aware of the submission of the impugned withdrawal purshis, having made his objection and placed his signature on it, which was dated 24th September, 2021. So, the first limb of the argument of the learned advocate, Mr. Bhatt, that the copy of the impugned withdrawal purshis was not served upon the Page 22 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined defendant, is factually incorrect and bereft of any particulars, as such while making his endorsement, the defendant never stated that the copy of such impugned withdrawal purshis was not received by him.
25. Be that as it may, nothing prevented the defendant at the given point in time, once came to know about pursis, to submit his response against the impugned withdrawal purshis. For reasons best known to the defendant, he has chosen not to submit his response.
26. As per Order 23, Rule 1 of the CPC, when a plaintiff seeks unconditional withdrawal of the suit, the court has to accept such request of the plaintiff and the defendant cannot be allowed to object to such withdrawal except to demand costs. The record reveals that prior to the passing of the order permitting the plaintiffs to unconditionally withdraw the suit, no such demand for costs was ever made by the defendant and, in fact, was later on not pressed into service in express terms.
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27. To clear the doubts in the minds of the defendant and his learned advocate--who, though apprised of such position of the law during initial course of his argument, but was not ready to listen to and accepted the proposition of law laid down by the Honourable Supreme Court of India in number of its decisions, but went on arguing the matter, thereby wasted the precious time of this Court. Nonetheless, this Court cannot overlook such a proposition laid down by the Honourable Supreme Court of India, as the same is at least binding to this Court, and is, thereby, reproduced herein below.
28. It is first to refer and rely upon the decision of the Hon'ble Supreme Court of India, first in the case of Shiv Prasad v. Durga Prasad, reported in (1975) 1 SCC 405, wherein it was held thus:-
"12. Even on the interpretation of Rule 89(2) which we have put we are not prepared to accept the contention put forward on behalf of the appellant that an application under Rule 90 does not stand withdrawn until an order to that effect is recorded by the Court. The applicant merely has to convey to the Court that he is withdrawing his application under Rule 90 which he had filed prior to the making of the application under Rule 89. Thereupon he becomes entitled to make the latter application. Every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may Page 24 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the Court. The act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application. Respondent 1 has clearly done so here not only by mentioning in his application under Rule 89 that he was withdrawing his application under Rule 90 but also by filing a separate application to that effect, in which not only the statement as to the withdrawal of the application under Rule 90 was made but a prayer for the refund of Rs 2000 was also made. The steps taken on behalf of Respondent 1 in Miscellaneous Case No. 3/ 1967 even after the filing of Miscellaneous Case No. 1/1968 were clearly superfluous and of no effect. The steps taken did not nullify the withdrawal made by Respondent 1 of his application under Rule 90 and did not make the withdrawal merely on that account ineffective. Even if any ambiguity was created by the taking of such steps, later on March 9, 1968 in clearest language it was intimated on behalf of Respondent 1 that he was not pursuing his application under Rule
90. It was only then that the Court made a formal order recording its dismissal. In our judgment on the facts and in the circumstances of this case, the order of the Court made on March 9, 1968 had the effect of merely recording the withdrawal of the application under Rule 90 which was already effectively made on January 1, 1968. Even without that order, the withdrawal was effective on that date."
(Emphasis supplied)
29. The aforesaid principle was again reiterated by the Hon'ble Supreme Court in the case of Anurag Mittal vs. Shaily Mishra Mittal, reported in (2018) 9 SCC 691, wherein, taking note of the provisions of Order 23, Rule 1 of the CPC, the Hon'ble Supreme Court has held as under:-
"15. In case of a dissolution of marriage, a second marriage shall be lawful only after dismissal of the appeal. Admittedly, the marriage between the appellant and the respondent was on 6- 12-2011 i.e. before the order of withdrawal was passed by the Court on 20-12-2011 [Anurag Mittal v. Rachna Mittal, 2011 SCC OnLine Del 5694] . There is no dispute that the application for withdrawal of the appeal was filed on 28-11-2011 i.e. prior to the date of the marriage on 6-12-2011. We proceed to consider Page 25 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined the point that whether the date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. Order 21 Rule 89(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") provides that unless an application filed under Order 21 Rule 90 CPC is withdrawn, a person shall not be entitled to make or prosecute an application under Order 21 Rule 89 CPC.
16. In Shiv Prasad v. Durga Prasad [Shiv Prasad v. Durga Prasad, (1975) 1 SCC 405] , the contention of the appellant therein that an application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the effect is recorded by the court, was not accepted. It was held that every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting the withdrawal of the application. This Court concluded that the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application.
17. The High Court of Bombay in Anil Dinmani Shankar Joshi v.
Panvel Municipal Council [Anil Dinmani Shankar Joshi v. Panvel Municipal Council, 2003 SCC OnLine Bom 24, paras 3-4 : AIR 2003 Bom 238, p. 239] followed the judgment of this Court in Shiv Prasad [Shiv Prasad v. Durga Prasad, (1975) 1 SCC 405] and held that the said judgment is applicable to suits also. The High Court recognised the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would be complete as soon as the plaintiff files his purshis of withdrawal.
18. Order 23 Rule 1(1) CPC enables the plaintiff to abandon his suit or abandon a part of his claim against all or any of the defendants. Order 23 Rule 1(3) CPC requires the satisfaction of the Court for withdrawal of the suit by the plaintiff in case he is seeking liberty to institute a fresh suit. While observing that the word abandonment in Order 23 Rule 1(1) CPC is "absolute withdrawal" which is different from the withdrawal after taking permission of the court, this Court held as follows [K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] :
(Kokila case [K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] , SCC pp. 463-64, para 12) "12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court;
in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh Page 26 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order 2 Rule 2 and Section 11 CPC."
19. Order 23 Rule 1(1) CPC gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that Order 23 Rule 1 CPC is applicable to appeals as well and the appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. [Bijayananda Patnaik v. Satrughna Sahu, (1964) 2 SCR 538 at p. 550 : AIR 1963 SC 1566, p. 1571, para 7] Therefore, the appeal is deemed to have been withdrawn on 28-11-2011 i.e. the date of the filing of the application for withdrawal. On 6-12-2011 which is the date of the marriage between the appellant and the respondent, Ms Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5(i) is not attracted and the marriage between the appellant and the respondent cannot be declared as void."
(Emphasis supplied)
30. At this stage, it is also profitable to place reliance on the decision of the Hon'ble Apex Court in the case of Anil Kumar Singh Vs. Vijay Pal Singh and others reported in (2018) 12 SCC 584, more particularly in Para- 15, 16, 23-28, which reads as under :-
"15) The short question, which arose for consideration before the High Court in the writ petition filed by defendant No.1 (respondent No.1 herein) was whether the two Courts below were justified in allowing the application filed by the appellant (plaintiff) under Order XXIII Rule 1 of the Code and thereby justified in permitting the appellant (plaintiff) to withdraw the suit. Page 27 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025
NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined
16) In other words, the only question, which the High Court was called upon to examine in the writ petition, was whether the appellant's (plaintiff's) application filed under Order XXIII Rule 1 of the Code praying for permission to withdraw the suit was rightly allowed by the Trial Court or not.
xxxxxxxx
23) In our considered opinion, when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in sub- rule (4).
24) The reason is that while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him.
25) However, when the plaintiff applies for withdrawal of the suit along with a prayer to grant him permission to file a fresh suit on the same subject matter as provided in sub-rule (3) of Rule 1 then in such event, the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek withdrawal of the suit should be granted to the plaintiff and, if so, on what terms as provided in sub-rule (3) of Rule 1.
26) Now coming to the facts of the case, we are of the considered opinion that the Trial Court and the Revision Court (A.D.J) were justified in permitting the appellant (plaintiff) to withdraw the suit under sub-rule (1) of Rule 1. In other words, since the appellant had applied for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was justified in permitting withdrawal of the suit subject to the appellant paying cost of Rs.350/- to respondent No.1 (defendant No.1). Such order, in our view, was in conformity with sub-rule (3) of Rule 1 and was rightly upheld by the Revision Court.
27) The High Court, however, committed jurisdictional error in allowing the defendant's writ petition by finding fault in the orders of the Trial Court and Revision Court and giving directions to the plaintiff to place defendant No.1 in possession of the suit land without there being any basis whatsoever.
28) As mentioned above, the High Court should have seen that the Page 28 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the Code and to decide this question, the High Court should have confined its inquiry to examine as to whether the requirements of Order XXIII Rule 1 were complied with or not but not beyond it."
(emphasis supplied)
31. This Court has also had an occasion to answer the issue which has been raised by the learned advocate Mr. Bhatt, in its decision, in the case of Rameshbhai Chhelshankar Oza Himself & As Director Of Versus Deven Jagnath Joshi & Ors. in Appeal from Order No. 43 of 1999, wherein, it was held thus.
"16. Thus, what is deduced from the ratio laid down by the Hon'ble Apex Court in the case of Anil Kumar Singh (supra) as well as the above cited decisions of the Co-
ordinate Bench of this Court, that in a case where the plaintiff has prayed for unconditionally withdrawal of his suit then, the defendant has no right to object such withdrawal of the suit except praying for costs."
(Emphasis supplied)
32. The conjoint reading of the aforesaid proposition of law clears any doubt in anyone's mind that once a withdrawal purshis is submitted, whereby the plaintiffs seek to unconditionally withdraw their suit, the suit is deemed to have been withdrawn on that very day and, irrespective of any objection so raised by the defendant, the court has to accept Page 29 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined such request of the plaintiff, except by awarding costs to the defendant of demanded.
33. Thus, in view of the aforesaid facts and circumstances of the present case, as well as the law laid down by the Supreme Court of India and so also considering the provisions of Order 23, Rule 1 of the CPC, I do not find any error in the impugned order dated the 27th September, 2021 passed by the Trial Court while permitting the plaintiffs to unconditionally withdraw the suit.
34. It is apposite and required to be mentioned that the Trial Court has categorically observed that the counter-claim filed by the defendant survived and be proceeded accordingly. Thus, the Trial Court has not taken away the vested right of the defendant of pursuing his counter-claim in accordance with law as alleged.
35. The series of judgments so cited by the learned advocate Mr. Bhatt are not applicable to the facts of the present case, as the issues germane in those cases are clearly different and distinguishable one, but unmindful of the case on hand cited Page 30 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined by him. For the sake of citing decisions, the learned advocate, Mr. Bhatt, had cited those decisions just to linger on the matter further. At the same time, the learned advocate, Mr. Bhatt, was not able to distinguish the aforesaid judgments as referred hereinabove of the Honourable Supreme Court of India, although brazenly stated during the course of his arguments that he would be able to distinguish all these judgments which he could not at end of his arguments.
36. This Court would have rested the matter here and not required to go further in the matter, but as the learned advocate, Mr. Bhatt, had insisted on being allowed to read plaint and his impugned application being Civil Miscellaneous Application No.613 of 2021, filed before the Trial Court, and other applications, whereby the Trial Court, vide its order dated 19th October, 2022, passed an order thereby rejected such application, this Court would also like to appreciate such facts and the submissions made by the learned advocate, Mr. Bhatt.
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37. The impugned application, being Civil Miscellaneous Application No.613 of 2021, appears to have been filed under Order 23 read with Section 151 of the CPC, etc. As such, the prayer made in such application was to cancel/recall/review the order dated 27th September, 2021 passed by the Trial Court below Exhibit 1 in the suit. Though such application was filed through the learned advocate, Mr. Bhatt but a correct provision of law was not mentioned, i.e., Order 47 read with Section 114 of the CPC. This shows how casually, without quoting the appropriate provisions of law, the application was filed before the Trial Court.
38. Nonetheless, the Trial Court not only registered such an application but heard the matter on its merits and, ultimately, finding no substance in the application, so rejected it.
39. This Court is also of the same opinion that no gross illegality and/or irregularity was committed by the Trial Court in accepting the unconditional withdrawal of the suit of the plaintiffs and in not entertaining the application filed at the Page 32 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined instance of the defendant, no fault can be found with the Trial Court when it rejected impugned application of defendant. As such, there is no gross error of law and/or jurisdictional error committed by the Trial Court while rejecting the impugned application filed by the defendant.
40. Learned advocate Mr. Bhatt has further argued that the reason for submitting the withdrawal purshis is not in consonance with the pleadings of the plaintiff; thereby, the Trial Court could not have permitted the plaintiff to withdraw the suit.
40.1. Such an argument is thoroughly misconceived not only on facts but on law, inasmuch as, Order 23, Rule 1 of the CPC would not require and/or cast a duty upon the plaintiffs to state any reason for the unconditional withdrawal of their suit.
41. Furthermore, by overlooking the fact that the suit was filed seeking prohibitory injunction against the defendant, as according to the plaintiff, the defendant and/or his agent was trying to interfere with their possession of the suit premises. Page 33 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025
NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined Whereas, what has been stated in the withdrawal purshis is that as the plaintiff has handed over the possession of the suit premises to its original owner, the plaintiff would not like to pursue the suit anymore and accordingly wants to unconditionally withdraw the suit.
42. It is a matter of common sense, which is not appreciated by learned advocate Mr. Bhatt, that when the cause of action for filing the suit does not survive as, according to the plaintiff, she has handed over possession of the suit premises to its original owner, the question of seeking any prohibitory injunction under the suit is out of place.
43. This vital fact was either unnoticed by the defendant or his lawyer and/or purposely unnoticed by them. But if understood in correct perspective, it would not consume the precious time of the Trial Court and of this Court, which required to invest into such a frivolous litigation at the hands of an unscrupulous litigant who has aimed to malign the image of the Trial Court not only by joining the Trial Court in the Page 34 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined present application but also by making a prayer for taking appropriate action against it for no good reasons.
44. This Court would have stated much more about the entire conduct of the defendant and his lawyer, who have at several stages from filing the applications before Trial Court, and also the present application, made an incorrect statement which was, in fact, admitted by learned advocate Mr. Bhatt during the course of his submission, but the fact remains that the defendant wants to keep alive the dispute which was already dropped by the plaintiff.
45. It is indigestible that, on the one hand, the defendant is insisting that there is no substance in the plaint but, on the other hand, he is making application after application stating that such suit could not have been permitted to be withdrawn by the Trial Court and, as such, the legal heirs of plaintiff No. 2 were required to be brought on record whereby the suit can be continued. It is unfathomable that for what purposes and reasons, the defendant wants to continue the suit which, Page 35 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined according to him, is not worth to stand in law and as such he is not proceeding with his own counterclaim which is survived irrespective of withdrawal of the suit.
46. Thus, conjoint reading of the aforesaid, would lead to only one conclusion: that the filing of the present application is nothing but a sheer abuse of the process of law by an unscrupulous litigant who wants to browbeat the Trial Court and also to consume the precious time of this Court.
47. According to this Court, such unwarranted litigation requires to be stopped at the threshold by nipped in the bud, and that too with costs.
48. CONCLUSION 48.1. The upshot of the aforesaid observations, discussion, and reasons would find no merit in the present application; rather, I have found that it is a frivolous, unwarranted, and unfathomable litigation at the hands of an unscrupulous litigant, which requires to be rejected with costs, which is quantified to Rs.25,000/-, to be paid by the petitioner herein to respondent No.1 - plaintiff No. 1.
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NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined 48.2. The Trial Court was not requires to be joined as respondent No.3 in present application which is nothing but a sheer abuse of process of law at instance of petitioner. So, respondent No.3 is not only deleted from this matter but its duty of this Court to save respondent No.3 who not requires to face any more litigation being filed at instance of petitioner in any Court in future.
48.3. As the petitioner has consumed the precious time of the Trial Court as well as of this Court by filing such frivolous applications and so also wrongly joined Trial Court in this matter, petitioner is hereby directed to deposit a sum of Rs.25,000/- with the District Legal Services Authority, Ahmedabad (City) as an additional cost.
48.4. Both these aforesaid costs shall be paid and deposited by the petitioner within a period of four weeks from today. 48.5. The Trial Court is hereby directed to ensure compliance of the payment of costs by the petitioner to the respective parties, and in a case where the petitioner fails to pay and deposit such amount of costs, the Trial Court may Page 37 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025 NEUTRAL CITATION C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025 undefined pass an appropriate order in the counter-claim which is filed at the instance of the petitioner-defendant pending before it. 48.6. It shall be open for plaintiff No. 2 as well as the District Legal Services Authority, Ahmedabad (City), to recover the amount of costs from the petitioner by way of alien recovery in accordance with law.
49. Before parting with, this Court warns learned advocate Mr. Bhatt to take note of his aforesaid conduct, as noticed and observed by this Court and this time spares him by not taking any action against him, with the hope and trust that, being a senior member of the Bar, he will not repeat such behaviour in the future but introspect himself.
50. In view of the aforesaid, the present application is bereft of any material particulars, lacks merit, and requires to be rejected, which is hereby REJECTED with costs as aforesaid. Notice discharged.
(MAULIK J.SHELAT,J) MOHD MONIS Page 38 of 38 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:35:28 IST 2025