Delhi High Court
Bharat Bhushan Gupta vs Raj Kumar Gupta on 19 May, 1993
Equivalent citations: 1993IIIAD(DELHI)1, AIR1994DELHI207, 51(1993)DLT39, AIR 1994 DELHI 207, (1993) 2 CURCC 590, (1993) 51 DLT 39, (1993) 2 RENCR 289
JUDGMENT Usha Mehra, J.
(1) A very short and interesting point has been raised in this Revision Petition, namely once the suit has been withdrawn by the plaintiff, can he revoke that withdrawal ?
(2) This was the only point raised in 'this Revision Petition. There are no much facts involved in this case. The short and brief facts are that respondent herein filed a suit against the petitioner who happens to be his son. Summons of the suit were served on the petitioner on 8-1-1993 and he was required So appear in Court on 11-1-1993. On 10-1-1993, respondent herein met the petitioner according to the allegation and agreed to withdraw the suit against the petitioner. He made the following endorsement on 10-1-1993 on the summon issued by the Cour: to the defendant: "I am withdrawing my above case against my son Bharat Bhushan Gupta which is pending in the Court of Shri Shiv Charan, Magistrate. Other legal formalities would be done by my Advocate,"
(3) Sub rule (1) of Rule I of Order 23, Code of Civil Procedure. gives unqualified' right to a plaintiff to withdraw or abandon a suit. Admittedly the Rules does not requi.re any order in the case of withdrawal. No leave or order is necessary. The permission of the Court is necessary only when the plaintiff wants to file a fresh suit in respect of the same cause of action. Plaintiff can also withdraw his suit with liberty to bring a fresh suit. But the question is. if the withdrawal is not before the court or with the leave of the Court, but is done by making an endorsement on the summons, can he come to the Court and state that he wants to revoke that withdrawal ? Mr. V. B.. Andley, appearing for the petitioner, contended that the words "at any time" in sub rule (1) means at any stage after the institution of the suit and before its disposal. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit. or part of the claim. The language of sub rule (1) affirms the unqualified right of the plaintiff to withdraw or abandon) a suit. There is no provision in the Code which requires the court to refuse permission to withdraw a suit or to compel a plaintiff to proceed with his suit. This is so because withdrawal of the suit under sub rule (1) is complete as soon as it takes place and in an" case when the court is informed of it. That being so there is no question of a right to revoke such withdrawal. No order is necessary to effectuate it.
(4) So far as the legal position is concerned there is no quarrel with the same. But each fact ha- to be weighed on its merits. In the present case, on the summon the plaintiff had mentioned that he was withdrawing his case, against his son, pending in the Court. Other legal formalities were to be done by his lawyer. The language of the endorsement shows that the plaintiff had not exercised the unqualified right to withdraw the suit. In fact the very reading of this endorsement shows that the legal formalities were to be done by his advocate, meaning thereby the the lawyer was to move an application in this regard in the Court. If can be termed as a conditional withdrawal. The lawyer never moved an application in the Court for withdrawing the suit. The plaintiff had reserved the right which he never exercised before the Court. Therefore there was no question for the Court to apply its mind. The question arises, what could be 'he other formalities. Mr. Andley stated that it was simply to inform the Court that the suit has been withdrawn. This condition can be interpreted in other.way also that the plaintiff had to give instruction to his lawyer to move an application in the Court incorporating the terms and conditions of his withdrawl. If he was to simply withdrawl the suit he would not have left the formalities to be completed by his lawyer. This shows :that it was not a withdrawal without impediments. An. application for withdrawal without prejudice to lawful rights and remedy is not enough. May be by "other legal formalities" the plaintiff meant the liberty 'to institute fresh suit on the same cause of action en the happening of certain even's.
(5) The factum of his writing that other formalities shall be completed' by the lawyer shows that in fact plaintiff was to move an application, till then he was only considering to withdraw or he was likely to withdraw. The words. "I am withdrawing" does not mean that he had withdraw the option of or right to withdraw. It would mean "I will withdraw subject to the legal formulates to be gone into by the lawyer". Leared counsel for the petitioner has placed reliance on (he judgment of the Allahabad High Court, the same was taken note and discussed by the learned Additional District Judge i.e. Razia Sultana Begam and others V. Abdul Qadir and others . In that case Court observed that though no specific orders are required to be. passed by the Court on withdrawal, however certain orders may be passed by ihe Court in order to give effect to hot consequences arising out of the withdrawal. But before the said thing could have happened in this case the respondent informed to the court that endorsement on the summon was obtained under pressure by his son and that withdrawal was not with his free consent. Taking into consideration the relationship of the petitioner and the respondent, being father and son, and if the father under 'the pressure of the son writes that he will withdraw the suit but while appearing in the court informs to the court that withdrawal was not by free consent but under duress and pressure, then the Court cannot shut, its eyes to these reealities, In such an eventuality the decision of Calcutta High Court is on all force applicable. In the case of Rameswar Sarkar V. Sate of West Bengal and others it was held that in a proper case an application for withdrawl of suit may be allowed to be withdrawn and the suit proceeded with. As already observed above it is not every case that the withdrawl can be allowed to be revoked. But in the facts and circumstances of this case when it has come on record that summons were sent in the suit to the present petitioner. According to respondent, the petitioner obtained endorsement from the respondent under pressure. Because of relationship between the parties, respondent yield to the pressure of the petitioner. If it is under pressure, then the Court cannot give effect to such a withdrawl of the suit. Therefore to my mind it is a fit case, where the court rightly rejected the revocation of the withdrawl, because the reading of the endorsement shows that it was not an unqualifiedwithdrawl. It was subject to the condition of fulfillling the formalities through the lawyer which formalities were never completed at any stage.
(6) For the reasons stated above, I see no infirmity in the order of the trial court nor any merit in his petition.
(7) MAY19th, 1993