Gujarat High Court
Rameshbhai Chhelshankar Oza Himself & ... vs Deven Jagnath Joshi on 21 February, 2025
NEUTRAL CITATION
C/AO/43/1999 JUDGMENT DATED: 21/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 43 of 1999
With
CIVIL APPLICATION NO. 1 of 1999
In R/APPEAL FROM ORDER NO. 43 of 1999
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2007
In R/APPEAL FROM ORDER NO. 43 of 1999
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2007
In R/APPEAL FROM ORDER NO. 43 of 1999
With
R/SPECIAL CIVIL APPLICATION NO. 11420 of 2002
With
R/SPECIAL CIVIL APPLICATION NO. 4951 of 2007
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2007
In R/SPECIAL CIVIL APPLICATION NO. 4951 of 2007
With
CIVIL APPLICATION NO. 1 of 2008
In R/SPECIAL CIVIL APPLICATION NO. 4951 of 2007
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2008
In R/SPECIAL CIVIL APPLICATION NO. 4951 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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RAMESHBHAI CHHELSHANKAR OZA HIMSELF & AS DIRECTOR OF
Versus
DEVEN JAGNATH JOSHI & ORS.
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Appearance:
MS SIDDHI V VADODARIYA(9533) for the Appellant(s) No. 1
MR AR MAJMUDAR(428) for the Respondent(s) No. 4
MR ARUN H MEHTA(454) for the Respondent(s) No. 5
MR AS VAKIL(962) for the Respondent(s) No. 13
MR JIGAR M PATEL(3841) for the Respondent(s) No. 2,3
MR PERCY KAVINA, SR. ADVOCATE with learned advocate Mr. Suren
Patel for the Respondent(s) No. 1
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NEUTRAL CITATION
C/AO/43/1999 JUDGMENT DATED: 21/02/2025
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RULE NOT RECD BACK for the Respondent(s) No. 12
RULE SERVED for the Respondent(s) No. 10,11,16,18,6,9
RULE SERVED BY DS for the Respondent(s) No. 7,8
SERVED BY AFFIX. (R) for the Respondent(s) No. 15,17
THAKKAR AND PAHWA ADVOCATES(1357) for the Respondent(s) No. 14
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 21/02/2025
ORAL JUDGMENT
1. Heard learned advocate Ms. Siddhi Vadodariya for the petitioners, learned senior counsel Mr. Percy Kavina with learned advocate Mr. Suren Patel for respondent No.1, learned senior counsel Mr. Dhaval C. Dave with learned advocate Mr. Jigar M. Patel for respondent Nos. 2 & 3, learned advocate Mr. A.S. Vakil for respondent No.13 (Company) and learned advocate Mr. Vimal Patel for subsequent purchaser - opponent No. 19 to 23 of Civil Application 1191 of 2008 (joining party application).
2. With the consent of the learned advocates appearing for the respective parties, this Court would like to first deal with the argument of respective learned advocates appearing for the parties in relation to the issue touches withdrawal of the suit, as once such issue answered by this Court, the rest of the matters will be automatically answered as their fate would solely rest upon the outcome of Special Civil Application No. 4951 of 2007.
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3. The present petition being Special Civil Application No. 4951 of 2007 is filed under Article 227 of the Constitution of India seeking following relief :-
"(A) Your Lordships may be pleased to issue appropriate writ, order or directions for quashing and setting aside the order passed below Exh. 170, dated 12.2.2007, passed by the 4th Addl. Sr. Civil Judge, Rajkot in Special Civil Suit No. 237 of 1998, as the same is obtained by playing fraud with the court and hence, the same is arbitrary, illegal null and void.
(B) Your Lordships may be pleased to issue appropriate writ, order or directions directing the Court of Hon'ble Civil Judge (S.D), Rajkot to hand over the possession of immovable and movable properties of the company attached by the Court Commissioner on 26.01.1999 vide Exh.51 to the petitioner No.1, as the same was attached from his custody.
(C) Your Lordships may be pleased to issue appropriate writ, order or direction to the court of Hon'ble Civil Judge (S.D), at Rajkot to initiate/institute appropriate criminal proceedings against the Resp.
No.1 and 2 herein for playing fraud with the court and for producing concocted fraudulent documents vide Mark 4/7 and 4/12, in the interest of justice and dignity of the court.
(D) Your Lordships may be pleased to stay the implementation, operation and execution of the order passed below Exh.170 dt. 12.02.2007 passed by the 4 th Addl. Civil Judge (S.D), Rajkot, and further be pleased to direct the Hon'ble 4 th Addl. Civil Judge (S.D), Rajkot to hand over possession of the assets of the company attached vide order passed below Exh.51 to the petitioners, pending admission, hearing and final disposal of this petition.
(E) Your Lordships may be pleased to pass such other and further relief as the Hon'ble Court may deem fit in the facts and circumstances of the case."
4. As far as possible, the parties will be referred as per Page 3 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined their original position in the suit.
Facts of the case.
5. The present petition is filed by original defendant Nos. 2 & 5 of Special Civil Suit No. 237 of 1998 which was filed by respondent No.1- original plaintiff in the court of Civil Judge, Senior Division, Rajkot against the petitioners herein as well as respondent Nos. 2 to 18.
5.1 The suit was filed for recovery of Rs. 4,38,88,712/- with interest from defendant No.13/14-Company and defendant Nos. 2 & 5 and others are claimed to be its Director and or office bearers as the case may be, so joined in the suit.
5.2 The aforesaid suit was filed on 28.01.1998 wherein an ex-parte ad-interim injunction has been granted against the defendants.
5.3 The plaintiffs appears to have filed an application below Exh.30 sought attachment of the properties of defendant No.13 (Maruti Extractions Pvt. Ltd) before judgement. On the very day, pursuance to the aforesaid application, the defendant No.1 claiming to be a Director of defendant No.13, agreed to furnish security. So, trial Court Page 4 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined appears to have granted an application filed below Exh.30.
5.4 The petitioner No.1-defendant No.2 only challenged the order dated 23.11.1998 passed by the trial Court below Exh. 30 before this Court by way of Appeal from Order being No. 43 of 1999 under Order 43 of CPC.
5.5 The defendant No.2 appears to have filed his written statement on 22.01.1999. It has been alleged that after defendant No.2 left the Court on filing its written statement, the plaintiff has filed an application below Exh. 51 on 22.01.1999 (on the same day when the written statement was filed by the defendant No.2) thereby, plaintiff has sought for police protection for attachment of the properties of defendant No.13 as defendant No.13 failed to offer securities in time.
5.6 The plaintiff has further filed an application below Exh. 52 thereby requested for appointment of Court Commissioner for proper execution of attachment of the properties of defendant No.13. On the very day, the trial Court claimed to have allowed all these applications.
5.7 So, pursuance to the aforesaid order passed by the trial Court, factory premises of defendant No.13 which was Page 5 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined claimed to be in possession of defendant No.2 was attached through Court Commissioner/ Police.
5.8 The defendant No.2 claimed to have filed an application below Exh. 60 on 06.02.1999 seeking suspension of order passed by the trial Court below Exh. 50 & 51. Such application came to be rejected by the trial Court, which is challenged before this Court and it is the subject matter of Special Civil Application No. 11420 of 2002.
5.9 The petitioners herein claimed to have filed criminal complaint against the defendant No. 1 and others for misusing their authority thereby, jeopardise interest of defendant No.13-company. It is required to be noted here that the criminal action taken by the petitioners against the respondents are not placed on record and as such not required to be considered by this Court as no direct bearing on the issue germane in the present proceedings.
5.10 It appears that during the pendency of these proceedings before this Court, the plaintiff had filed a withdrawal pursis below Exh. 170, thereby requested the trial Court to permit the plaintiff to withdraw the suit unconditionally. Such withdrawal pursis was filed on 12.02.2007, which was objected by the defendant No.2 only Page 6 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined having endorsed on such pursis i.e. "seen & I strongly object."
5.11 After hearing the learned advocates appearing for the respective parties, and having observed that there is no stay granted by this Court of the suit proceedings, the trial Court vide its order 12.02.2007 permitted the plaintiff to withdraw the suit unconditionally.
5.12 It is also required to be taken note of the fact that defendant No.1 had filed a declaration pursis below Exh. 171 on 12.02.2007, thereby declared that defendant No.13/14 (Company) has received all the properties as per Exh. 65 from the Receiver. The trial Court appears to have recorded such declaration.
5.13 The defendant No.2 appears to have filed an application below Exh. 180 on 13.02.2007, on the next day after the disposal of the suit being withdrawn on 12.02.2007 contending inter-alia that at the time of attachment of properties of defendant no.13 (Company), the defendant No.2 was in possession which were taken over from defendant No.2 then, such properties to be handed over to defendant No.2. The trial Court appears to have taken cognizance of the said application by issuing notice to the parties, as well as the Court Commissioner but later on, Page 7 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined claimed to have disposed of such application, having realized to be functus officio.
5.14 Being aggrieved and dissatisfied with the impugned order dated 12.02.2007 passed by the 4 th Additional Senior Civil Judge, Rajkot below Exh. 170 in Civil Suit No. 237 of 1998, thereby the trial Court has permitted the plaintiff to withdraw the suit, which is challenged by defendant no. 2 & 5 before this Court by filing Special Civil Application No. 4951 of 2007 under Article 227 of the Constitution of India.
6. Considering the aforesaid peculiar facts and circumstances of the case, it is an appropriate for this Court to first examine the impugned order dated 12.02.2007 passed by the trial Court, thereby to decide as to whether trial Court has committed any gross error of law while permitting the plaintiff to withdraw his suit and whether impugned order suffers from any jurisdictional error or not?
Submission of the learned advocate for petitioners- defendant Nos. 2 & 5.
7. Learned advocate Ms. Siddhi Vadodariya for the petitioners- defendant Nos. 2 & 5 would submit that the Page 8 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined impugned order dated 12.02.2007 passed by the trial Court is against the principle of natural justice, to be interfered by this Court by exercising its power under Article 227 of the Constitution of India.
7.1 Learned advocate Ms. Vadodariya would submit that no opportunity of hearing and to submit necessary replies/ objections granted by the trial Court before passing the impugned order thereby, committed a serious irregularities, which are required to be rectified by this Court.
7.2 Learned advocate Ms. Vadodariya would further submit that there are serious allegation of fraud has been made by the petitioners herein against the co-defendants, who under the guise of the order of attachment previously passed by the trial Court as syphoned away the properties of defendant No.13/14 (Company) and this aspect was not examined by the trial Court while allowing withdrawal of the suit.
7.3 Learned advocate Ms. Vadodariya for the petitioners would submit that the defendant No.1 has no authority and he was not the Director of defendant No.13 (Company) at the relevant point of time, could not have declared that defendant No.13/14 has received the properties under the Page 9 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined attachment as per Exh. 65, thereby serious fraud has been claimed by the parties, which ought to have been considered by the trial Court while adjudicating the impugned application.
7.4 Learned advocate for the petitioners would submit that after passing the impugned order, on the application filed by the petitioner below Exh. 180, the trial Court requires to pass appropriate order, thereby it ought to have directed the defendant No.1 to hand over the properties of defendant No. 13/14 in favour of defendant No.1.
7.5 Learned advocate Ms. Vadodariya for the petitioners would further submit that there is a serious fraud played by the parties of the suit then, the trial Court could not have permitted withdrawal of the suit and requires to have directed the parties to adjudicate the suit on its merit.
7.6 Learned advocate Ms. Vadodariya would further submit that the petitioners have already filed criminal complaint against other parties of the suit, which is pending as on date, and in that view of the matter, the present petition challenging the impugned order dated 12.02.2007 requires to be allowed and the suit may be restored back on its file.
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Vadodariya would reply upon the decision of the Single Judge of the Delhi High Court in the case of Awaneesh Chandra Jha Vs. Anil Prasad Nanda reported in (2022) SCC Online Del 1866, more particularly referred Para 43 to 50, 57, 58, 59 & 60.
7.8 Making above submission, learned advocate for the petitioners would request this Court to allow the present petition.
Submission of the Respondent No.1-plaintiff.
8. Learned senior counsel Mr. Percy Kavina with learned advocate Mr. Suren Patel appearing for the original plaintiff
- respondent No.1 would submit that the present petition filed by the original defendant No. 2 & 5 is misconceived at law and nothing but an abuse of process of law.
8.1 Learned senior counsel would submit that the original defendant has wrongly dragged the plaintiff before this Court as the petitioners might have claimed against co- defendants for the alleged misdeed committed by them, instead of filing separate suit proceedings against them, the petitioners have chosen to prefer the present petition.
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plaintiff would further submit that it is an indefeasible right of the plaintiff to withdraw his suit which is available to every plaintiff as per Order XXIII rule 1 of CPC. He would further submit that when the plaintiff has declared before the trial Court to withdraw the suit unconditionally, the defendant has no right to object such withdrawal of the suit except asking for cost which is in fact not prayed by any of the defendants including the petitioners.
8.3 Learned senior counsel Mr. Kavina would further submit that plain reading of the Order XXIII rule 1 of CPC, leave no room of doubt for anyone by arguing that plaintiff cannot be permitted to withdraw his suit unconditionally. So, learned senior counsel Mr. Kavina for the original plaintiff would submit that there is no error much less any gross error committed by the trial Court, thereby it can not be interfered by this Court while exercising its power under Article 227 of the Constitution of India.
8.4 Learned senior counsel Mr. Kavina would respectfully submit that there is no merit in the claim of the petitioners, who have no right to object the withdrawal of the suit, as the plaintiff has consciously withdraw his suit unconditionally Page 12 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined thereby forgo their to recovery any amount from any of defendants including defendant No.13/14-Company.
8.5 Lastly, learned senior counsel Mr. Kavina would submit that as per settled legal position of law, once the withdrawal pursis is filed by the plaintiff, on that movement itself, the suit is treated to have been withdrawn and no formal order as such requires to be passed by the trial Court on such pursis. So, any subsequent application filed by the petitioners herein before the trial Court i.e. Exh. 180 and or any other could not have been looked into by the trial Court, which is correctly disposed of.
8.6 To buttress his argument, learned senior counsel Mr. Percy Kavina for the original plaintiff would rely upon the following decisions of this Court.
(i) Narharibhai Chaturbhai Patel Vs. Ashish Mukundlal Shah recorded in Special Civil Application No. 2082 of 2015 dated 24.05.2022, more particularly in Para-6, 10 & 16.
(ii) LHS. Of Khodaji Shivaji Thakor Vs. Girishbhai Ranchodbhai Patel recorded in Special Civil Application No. 3880 of 2023 dated 24.03.2023, more particularly in Para- 4.1, 5.2 & 5.3.
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(iii) Sanjaybhai Lakhabhai Oderdra Vs. Mineshbhai Bhogilal Patel recorded in Special Civil Application No. 3375 of 2022 dated 02.09.2023, more particularly in Para. 11.
Submission of the Respondents No. 2 & 3 - original defendant no. 1 & 3
9. Learned senior counsel Mr. Dhaval C. Dave with learned advocate Mr. Jigar Patel appearing for the respondent Nos.2 & 3 - original defendant Nos. 1 & 3 would adopt the argument of learned senior counsel Mr. Percy Kavina appearing for the original plaintiff. Nonetheless, learned senior counsel Mr. Dhaval Dave with learned advocate Mr. Jigar Patel for the respondent No. 2 & 3 would submit that respondent No.2 & 3 have filed detailed reply opposing the prayer made in the present petition, wherein it has been clearly stated that at the relevant point of time, respondent No.2 - defendant No.1 was the Director of defendant No.13 (Company).
9.1 Learned senior counsel Mr. Dhaval Dave would further submit that defendant No.1 has acted in the interest of defendant No.13, thereby not objected the withdrawal of the suit but the conduct of the petitioners are not befitting and not in the interest of defendant No.13 (Company), Page 14 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined otherwise, no Director would request the Court to continue the suit against the Company, which was filed by the third party.
9.2 Learned senior counsel Mr. Dave would further submit that as such the petitioners have no right to claim the properties of defendant No.13, as at the relevant point of time, they are not Director of defendant No.13 (Company). He would further submit that the statement of facts which are mentioned in the affidavit-in-reply filed by the respondent Nos.2 & 3 at page-94 to 111 are not controverted by the petitioners by filing any Rejoinder.
9.3 Learned senior counsel Mr. Dave would submit that instead of filing any independent suit or other civil proceedings against defendant No.13 (Company) and or other defendants, the petitioners have dragged the defendant No.13 and its Directors in the present proceedings, thereby consume precious time of this Court without any sufficient reasons.
9.4 Learned senior counsel Mr. Dave would further submit that mere alleging a fraud without substantiating such serious allegations by the petitioners, would itself suggest that with an oblige motive, the petitioners have preferred Page 15 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined the present petition, which may be viewed seriously by this Court, thereby requesting this Court to reject such petition with costs.
9.5 learned senior counsel Mr. Dave would submit that till date, if none of the criminal action which is initiated by the petitioners against any of the parties to the suit, resulted into their conviction. So, he would request this court not to entertain the present petition.
Submission of the Respondents No. 12 & 13- original defendant no. 13 & 14
10. Learned advocate Mr. A.S. Vakil for respondent No.12/13- defendant No.13/14 (Company) would submit that as such defendant No.13 being a company against whom the special suit was filed for the recovery of the amount and the plaintiff had declared to withdraw the suit unconditionally, the defendant No.13 (Company) had no objection when such prayer was accepted by the trial Court.
10.1 Learned advocate Mr. Vakil would further submit that defendant No.13/14 being Company have no grievance against withdrawal of the suit and the present petition filed by the petitioners is nothing but uncalled for, unwarranted Page 16 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined and frivolous litigation at the hands of so called Director of defendant No.13/14.
10.2 Learned advocate Mr. Vakil would submit that in the present proceeding, this Court is confined to decide only as to whether the trial Court has committed any error by permitting the plaintiff to withdraw the suit unconditionally or not?. According to learned advocate Mr. Vakil, the question of playing fraud etc, may not be gone into by this Court, as defendant No.13/14 have no grievance against the impugned order. So, learned advocate Mr. Vakil would request this Court that an appropriate order may be passed by this Court, thereby requested to dismiss the present petition as well as Appeal from Order.
Submission of the proposed Respondents No. 19 to 23.
11. Learned advocate Mr. Vimal Patel for the proposed Respondents No. 19 to 23 [Opponent No.19 to 23 in Civil Application (for joining party)] would submit that after withdrawal of the suit proceedings, the opponent Nos. 19 to 23 have purchased the immovable property of defendant No.13 by registered conveyance deed dated 13.02.2007 by paying an adequate full consideration.
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that a detailed reply has been filed by proposed Respondents No. 19 to 23 in Civil Application No. 1191 of 2008 wherein conveyance deed and other relevant documents have been placed on record, which are remained uncontroverted by the petitioners.
11.2 Learned advocate Mr. Patel would submit that the property purchased by respondent No.19 to 23 has been fully developed and currently it is used as a Party Plot. He would further submit that they are bona-fide purchaser value without notice and dragging them in the present proceedings, is nothing but abuse of process of law by the petitioners, who instead of filing separate proceedings against the Directors of defendant No.13, have chosen to file the present petition, which may be rejected.
12. Making above submission, learned senior counsel as well as learned advocate appearing for the respective respondents have submitted that the present petition challenging impugned order dated 12.02.2007 below Ex. 170 may be dismissed. So, consequently rest of the Petition and Appeal from Order may be dismissed with costs.
13. No other and further submissions have been made by Page 18 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined the learned advocates for the respective parties.
ANALYSIS
14. The short question which arise for consideration before this Court as to whether the trial Court has committed any jurisdictional error while allowing the impugned application filed by the plaintiff under Order XXIII Rule 1 of CPC thereby, committed any gross error of law in permitting the plaintiff to withdraw the suit unconditionally?
15. To appreciate the controversy involved in the matter, I would like to refer and rely upon the Order XXIII rule 1 of CPC, which reads as under :-
Order XXIII Rule 1 of the Civil Procedure Code, 1908 is as under;
"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 subrule (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, Page 19 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined 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 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 plaintiff.
15.1 As per Order XXIII Rule 1 of CPC, at any time, after the institution of the suit, the plaintiff may against all or any of the defendant abandoned and or withdraw his suit or abandoned part of his claim.
15.2 As per Order XXIII rule 1 (iii) (iv) of CPC, where the
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Court is satisfied that there are sufficient ground for allowing the plaintiff to withdraw the suit or part of his claim, then the Court may grant such permission.
15.3 The plain reading of Order XXIII rule 1 of CPC, it appears that the defendant has no right to object withdrawal of the suit especially when the plaintiff wants to withdraw his suit unconditionally albeit, the defendant can claim for the cost as he defended the suit.
15.4 At this stage, it is 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.
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.
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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 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 Page 22 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined 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) 15.5 Likewise, the decisions so referred by the learned senior counsel Mr. Kavina for the plaintiff would also in the line of the ratio laid down by the Hon'ble Apex Court in the case of Narharibhai Chaturbhai Patel (supra), more particularly in Para-6, 10 & 16, which is reproduced as under :-
"6. That, from a reading of the plaint, it becomes apparent that in the present proceedings, all the transactions challenged by the original plaintiff are done by the respondent no. 1 herein and all the allegations made are against the respondent no. 1 herein. Consequently, permitting the respondent no. 1 to be transposed as the plaintiff would amount to permitting the respondent no. 1 to prove allegations against himself and to challenge his own actions which would be completely illogical. That, the petitioner no. 1 is the plaintiff of Regular Civil Suit No. 91 of 2001 and is consequently the dominus litus of the said suit and therefore no person can be permitted to be joined as a co-plaintiff without the consent of the petitioner no. 1. That, the sole purpose of the respondent no. 1 applying to transpose himself as well as the company as plaintiffs was the respondent no. 1 wanted to misuse the ad interim relief granted earlier and illegally pressurize the petitioners herein for gaining undue advantage in his second suit. As a matter of fact, an application for contempt is already filed by the respondent no. 1 in the proceedings of Regular Civil Suit No. 91 of 2001. That, as on today, by action of the original plaintiff, the Regular Civil Suit No. 91 of 2001 has become infructuous and would not survive. Consequently, the question of transpose would never arise. That, the despite the aforesaid facts, the Hon'ble Civil Court, vide order dated 15/10/2014 passed below Exh. 124 and 132 in Regular Civil Suit No. 91 of 2001 and rejected the withdrawal purshish of the petitioner no.1 herein and also permitted the respondent no. 1 to transpose himself as well as the petitioner no. 2 company as plaintiffs of Regular Civil Suit No. 91 of 2001 and the said order is wholly without jurisdiction, arbitrary and is passed without any Page 23 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined application of mind. The learned Civil Court neither has the jurisdiction to force the petitioner no. 1 to continue with the suit nor has jurisdiction to prevent him from withdrawing the suit nor has jurisdiction to transpose the company and the respondent no. 1 as plaintiffs in the facts of the present case. The learned trial Court has also failed to consider the absurd situation which is created by permitting the respondent no. 1 and the petitioner company to be transposed as plaintiffs in the facts of the present case. Hence, it was requested by learned advocate for the petitioners to allow present petition. In support of his arguments, learned advocate for the petitioners has relied upon the following judgments:
1. Jethiben v. Maniben and Anrs. Reported in AIR 1983 Gujarat 194. 2. Sabbirali Alihusein Vora v. Kikabhai Mohmedali, reported in 2006(0) AIJEL HC 216992
3. Patel Dineshbhai Mohanbhai v. Naranbhai Ramdas (Deceased) through Legal Heirs, reported in 2005(1) GLR page no. 116.
10. Having heard learned advocate for the petitioners and learned advocate for the respondent no.1 and having perused the material documents placed on record by the either side, it appears that Regular Civil Suit No. 91 of 2001 was filed by the petitioner no.1 against the respondents/defendants before the trial court. During the pendency of this suit, vide Ex. 124, a purshish was filed by the plaintiff stating that there was no dispute between the plaintiff and the defendants and all the disputed were resolved, and therefore, the plaintiff did not want to proceed further with the suit, and therefore, requested for unconditional withdrawal of the suit. He prayed to dispose of the suit in view of the contents of the application dated 15.12.2011 (produced on 17.12.2011) under the signature of the plaintiff namely Patel Narsinhbhai Chaturbhai. The Court below passed an order recording that the plaintiff namely Patel Narsinhbhai Chaturbhai was present and he was identified by his learned advocate Mr. S.S. Patel and defendant Prafulbhai Chimanbhai Patel was also present, who was also identified by his learned advocate Mr. J. A. Vaghela. Defendant No.6 was also present alongwith his learned advocate Shri D.N. Chauhan. It was declared at the bar before the court that they do not want to proceed with the suit, and therefore, they were unconditionally withdrawing the suit. The court further observed that in the suit, there was disclosure of said order passed by the Hon'ble Gujarat High Curt, and therefore, for Page 24 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined verification of the record, application Ex. 124 was fixed on the next day for hearing and passing further order on 17.12.2011. Endorsement was also made by learned advocate for the respondent no.2 objecting for withdrawal of the suit. Thereafter, vide Ex. 132, the defendants no.1 and 2 being director of defendant no.1 company in a personal capacity of Ashish Mukundlal Shah-respondent no.1herein made an application on 18.04.2013 praying to transpose him as the plaintiff, till then, no order was passed below application Ex. 124 permitting the plaintiff for withdrawal of the suit. After passing of one and half years approximately, second application Ex. 132 was submitted by the defendants no.1 and 2 praying to transpose them in a suit as the plaintiff for the reasons stated in the application. Learned trial Court after hearing the parties, allowed the application Ex. 132 preferred by the defendants no.1 and 2 and dismissed the purshish Ex. 124 for withdrawal of the suit by his common order dated 15.10.2014. As per the observations of the trial court, there was a substantial question between the parties and codefendant had identical interest and for avoiding another suit as well as multiplicity of proceedings, as defendants are the Director and some agreement was also made for development purpose, if prayer made by the defendants no.1 and 2 to transpose them would be accepted, the substantial question would be determined and if withdrawal of suit would be permitted, it would bring multiplicity of proceedings. If again refer the contents of the application Ex. 124 submitted by the plaintiff in Regular Civil Suit No. 91 of 2001, it was simply disclosed that there was no dispute remained pending between the parties and all the disputes were resolved, and therefore, plaintiff did not want to proceed with the suit further, and therefore, prayer to permit him to withdraw the suit unconditionally.
16. Hon'ble Supreme Court in case of "Ms. Hulas Rai Baij Nath v. Firm K.B. Bass and Co., reported in 1968 SC 111 has held that Order 23 Rule 1 Sub-rule (1) of C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit sought under Sub-rule (2) of the Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of the subject matter under sub-Rule (3) of the Rule. It was further held by the Hon'ble Apex Court in the said judgment that there is no provisions in the Code, which requires to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It has also been held that different considerations may arise where the set-off may have been Page 25 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined claimed under Order 8 of Civil Procedure Code, or a counter claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit."
(ii) Whereas in the case of LHS. of Khodaji Shivaji Thakor (supra), more particularly in Para- 4.1, 5.2 & 5.3, which is reproduced held as under :-
4.1 Per contra, learned senior advocate Mr. Mehul S. Shah appearing on behalf of learned advocate Mr. Padmraj K. Jadeja for the respondents has submitted that there is no locus to the present petitioner in view of the fact that the petitioner herself has filed an application at Exh.92 on 20.02.2019 and the trial Court has recorded the order on 20.02.2019. He has relied on the judgment of the Hon'ble Apex Court in the case of Anurag Mittal Versus Shaily Mishra Mittal reported in (2018) 9 SCC 691 and more particularly paras 10, 11 & 12 are relevant and has submitted that in view of the observations made by the Hon'ble Apex Court, provisions of Order XXIII Rule 1 of the C.P.C. gives an absolute right to the plaintiff to withdraw his claim or abandon any part of his claim, and therefore, there is no doubt that order XXIII Rule 1 is applicable to the appeals as well and the appellant has right to withdraw his appeal unconditionally and if he makes such application to the Court, the Court has to grant it, therefore, he has submitted that in that case, the appeal is deemed to have been withdrawn from the date of filing of application, and therefore, he has submitted that once the application is filed for withdrawal, the appeal is considered to be withdrawn.
xxxxxxxxx 5.2 The judgments of the Hon'ble Apex Court in the case of Anurag Mittal (supra), and more particularly paras 10, 11 and 12 are relevant, which are as under:
"10. 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
06.12.2011 i.e. before the order of withdrawal was passed by Page 26 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined the Court on 20.12.2011. 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 06.12.2011. We proceed to consider 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 XXI Rule 89 (2) of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") provides that unless an application filed under Order XXI Rule 90 of the CPC is withdrawn, a person shall not be entitled to make or prosecute an application under Order XXI Rule 89 of the CPC. In Shiv Prasad v. Durga Prasad, 4 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. The High Court of Bombay in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council, Panvel5 followed the judgment of this Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The High Court recognized the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would be 4 (1975) 1 SCC 405 5 AIR 2003 Bom. 238, 239 complete as soon as the plaintiff files his purshis of withdrawal.
11. Order XXIII Rule 1 (1) of the CPC enables the plaintiff to abandon his suit or abandon a part of his claim against all or any of the defendants. Order XXIII Rule 1 (3) of the 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 XXIII Rule 1 (1) of the CPC is "absolute withdrawal" which is different from the withdrawal after taking permission of the court, this Court held as follows:
"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 Page 27 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined 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 suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit;
(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 6 K.S. Bhoopathy v. Kokila (2000) 5 SCC 458 by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC."
12. Order XXIII Rule 1 (1) of the 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 XXIII Rule 1 of the 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. 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 06.12.2011 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."
Further the judgment of the Hon'ble Apex Court in the case of M/s Hulas Rai Nath (supra) and more particularly paras 2 and 3 are relevant, which are as under:
"2. The short question that, in these circumstances, falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed. The language of Order 23, Rule 1. sub-rule (i ), C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is ,-ought under sub-r. (2) of that Rule, the plaintiff Page 28 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub- r. (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission .to withdraw the suit in such circumstances and to compel tile plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under 0. 8 C.P.C., or a counterclaim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. In the present case. the pleadings in paragraphs 8 and II of the written statement. mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counterclaim, because no provision is shown under which a counter-claim could have been filed in the trial Court in such a. suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of account and, in fact, the appellant was still contending that there could be no rendition of accounts in the suit, because accounts had already been settled. Even in para 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant, a decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts, no Such right can possibly be held to exist before the Court passed preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In 'these circumstances; at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express ,my opinion as to whether a Court is bound to allow Page 29 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined withdrawal of a suit to a plaintiff after some vested right may have accrued in the suit in favour of the defendant. On the facts of this case. it is clear that the right of the plaintiff to withdraw the suit not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly justified.
3. On behalf of the appellant, reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi v. Meyappa Chettiar and Others (1), where the Court held:
"Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of theclaim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. ]n suits, for partition, if a preliminary. decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit."
We do not think, as urged by learned counsel, that the learned Judges of the Madras High Court were laying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiff's withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such it right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and Page 30 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties. In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit."
Order XXIII Rule 1 of the Civil Procedure Code, 1908 is as under;
"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 subrule (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 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.
Page 31 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined (4) Where the plaintiff--
(a) abandons any suit or part of claim under subrule (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 plaintiff.
1A. When transposition of defendants as plaintiffs may be permitted.--Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
5.3 In view of the provisions of Order XXIII Rule 1(i), if I consider, which was rather explained in the above two judgments of the Hon'ble Apex Court and Order XXIII, it can be said that the suit is sought to be withdrawn by the present petitioner, and therefore, it clearly transpires that if the suit is sought to be withdrawn in the year 2019, the petitioner has no right to challenge for impleadment of the present respondent No.6 as a party in the suit and in turn the petitioner has no right to challenge the impugned order by way of filing of the present petition, and therefore, the petition is required to be dismissed on the ground that the petitioner has no right, title or interest in the suit proceedings, and therefore, the present petition is required to be dismissed."
(iii) Likewise, in the case of Sanjaybhai Lakhabhai Oderdra (supra), more particularly in Para. 11, which is Page 32 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined reproduced as under:
"11. What perceives from above case law that withdrawal of suit is unqualified right of the plaintiff. It cannot be objected by defendant in absence of proving any right vested upon him. To be noted that suit can be withdrawn unconditionally, as a matter of right, if no varied right of defendant is accrued."
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.
17. In such a situation, in the case on hand when the trial Court has permitted such withdrawal of the suit unconditionally, I do not find any error much less any gross error and or any jurisdictional error committed by the trial Court while passing the impugned order. As the cost was neither pressed before trial Court and so also before this Court, question of its granting to defendants-petitioners would not arise.
18. So far as the decision relied by the learned advocate Ms. Vadodariya for the petitioners in the case of Awaneesh Page 33 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined Chandra Jha (supra), it is not remotely applicable to the facts of the present case, inasmuch as in a case of Awaneesh Chandra Jha (supra) it has been so held by the Delhi High Court that the plaintiff in connivance with defendants have played fraud with the Court and in that peculiar facts and circumstances of the case, the plaintiff was not allowed to withdraw his suit. In the present case, petitioners have miserably failed to even whisper the fraud when withdrawal pursis was filed by plaintiff and even not for prayed any time to file any reply as now crying for it once trial Court has already permitted withdrawal of suit.
19. Further, there is no cavil on the point that if the party played fraud with the Court, in such a situation, the Court should not allow the plaintiff to withdraw his suit, otherwise any undue advantage received by him out of playing fraud with the Court would go unpunished. The relevant observation of Delhi High Court in the case of Awaneesh Chandra Jha (supra), which is reproduced as under :-
"43. On a plain reading of the provision, it is seen that the following scenarios are contemplated in the various rules of Order XXIII CPC:
i. The first scenario envisaged in Rule 1(1) and 1(2) of Order XXIII CPC is where the plaintiff wishes to abandon the whole or part of his claim against all or any of the defendants. In such case, the law permits the plaintiff to do so; except when the plaintiff is a minor or other person to whom Order XXXII Rules 1 to 14 CPC apply, in which case such abandonment is only permitted with leave of the court;
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ii. The second scenario envisaged in Rule 1(3) is when the court is satisfied that a suit must fail by reason of some formal defect; or if there are sufficient grounds for allowing the plaintiff to AIR 2000 SC 1165 (1975) 3 SCR 526 file a fresh suit for whole or part of the claim. In such case, the plaintiff requires permission of the court to withdraw the suit, which permission may be granted subject to such terms as the court thinks fit.
iii. A third scenario contemplated in Rule 1(4) is where a plaintiff abandons or withdraws from a suit or part of a claim without the permission of the court as required sub-rule (3), in which case the plaintiff is liable for costs and is precluded from instituting any fresh suit in respect of the same cause of action.
44. However, in the opinion of this court, the present case cannot be decided based on any of the aforesaid three scenarios but on an overarching and inexorable principle that must inform even a pedantic interpretation of Order XXIII CPC: namely, that fraud vitiates and nullifies any right to judicial relief. How this principle applies to the present case is discussed below.
45. The brazenness with which the plaintiff submitted that since he is the „MASTER‟ of his own suit - dominus litus, as he would argue - of his own suit - dominus litus, as he would argue - the court cannot stop him from withdrawing from the proceedings or abandoning his claim, set the court thinking as to the soundness of this proposition cast by the plaintiff in absolute and audacious terms.
46. If accepted, the proposition would imply that the right to legal remedy is an unqualified, unbridled and unguarded right whereby a litigant may file legal proceedings and withdraw or abandon legal proceedings, as and when, the litigant pleases, regardless of the motives, intention and conduct of the litigant. Such a right would imply that a court of law is a place where a litigant may approach without much cogitation, with a purported claim, whether bona-fidé or otherwise, substantiated or not, to take a chance and play a gambit; and if found floundering or failing, a litigant could simply walk-away, as a matter of absolute right, without the court having any say whatsoever in the matter. In the opinion of this court, that is not the position.
47. A court is not a casino for a litigant to place a bet masquerading as a legal claim; and to later withdraw from the proceedings if he finds he has a losing-hand. No legal proceedings may be initiated by a litigant by way merely of a gamble as if placing a wager, from which the litigant may conveniently withdraw at any time, if matters are not going Page 35 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined his way.
48. A court is a forum for laying serious, bona-fidé claims, even if they turn-out to be legally untenable or meritless upon conclusion of the process. A court is not a place for fraudulent game-playing by dishonest litigants, to attempt to get judicial imprimatur for false claims. This derives from the inexorable, immutable and overarching principle that fraud or fraudulent conduct in a court of law vitiates all curial proceedings.
49. In the course of hearing in this matter, this court was at pains to elicit from learned counsel for the plaintiff and the defendant their views on the effect that fraud or fraudulent conduct has on legal proceedings, especially in a case such as the present, but no meaningful response was forthcoming on that aspect.
50. Litigating parties cannot be permitted, even by consent, to bring a dishonest claim and to withdraw from it or abandon it when the dishonesty is discovered. Where it appears to the court that what is being played-out before it, even if consensually between apparently opposing parties, is suspect, the court would certainly be entitled to receive material, documents and information from a third party that may be alien to the proceedings as filed, to discover and unravel the mala-fidés or fraud being played-out before it by the litigating parties. This would be de rigueur where it appears that the litigating parties are, whether by consent or otherwise, seeking to destroy or negate the rights of a third party that is alien to the particular proceedings. Support for this is found inter-alia in decision of the Hon'ble Supreme Court in Ram Chandra Singh vs. Savtri Devi & Ors,13 the relevant portion of which reads as under :
"35. The consent order, as is well known, is an agreement between the parties with the seal of the court superadded to it. The appellant herein in the review application categorically stated that the parties to the appeal had suppressed the auction-sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of the first appeal resulting in creation of a third-party right was bound to be taken into consideration by the High Court. A third-party right cannot be set at naught by consent. The High Court, therefore, was required to consider the contention of the appellant in its proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order."Page 36 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025
NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined (emphasis supplied)
57. In this regard, the court reminds itself of the observations of the Hon‟ of his own suit - dominus litus, as he would argue -ble Supreme Court in the celebrated decision in S.P. Chengalvaraya Naidu vs. Jagannath :
"Fraud avoids all judicial acts, ecclesiastical or temporal"
observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree -- by the first court or by the highest court -- has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
"6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to Page 37 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined get an advantage ...."
(emphasis supplied)
58. In Meghmala vs. G. Narasimha Reddy, the Hon‟ of his own suit - dominus litus, as he would argue -ble Supreme Court has explained this aspect in the following words :
"Fraud/misrepresentation
28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal." ( Vide S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1 : AIR 1994 SC 853] .) In Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341 (CA)] the Court observed without equivocation that: (QB p. 712) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
*****
30. In Shrisht Dhawan v. Shaw Bros. [(1992) 1 SCC 534 : AIR 1992 SC 1555] it has been held as under: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct."
31. In United India Insurance Co. Ltd. v. Rajendra Singh [(2000) 3 SCC 581 : 2000 SCC (Cri) 726 : AIR 2000 SC 1165] this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. ......"
33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice.
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Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. ...."
34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. .... "
xxxxx
36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non- executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."
(emphasis supplied)
59. Furthermore, this principle has been reiterated in Indian Bank vs Satyam Fibres (India) (P) Ltd.,16 where the Hon‟ of his own suit - dominus litus, as he would argue -ble Supreme Court says:
"22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as Page 39 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. ... The court has also the inherent power to set aside a sale brought about by fraud practised upon the court ( Ishwar Mahton v. Sitaram Kumar [AIR 1954 Pat 450] ) or to set aside the order recording compromise obtained by fraud.( Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh [AIR 1958 Pat 618 : 1958 BLJR 651] ; Tara Bai v. V.S. Krishnaswamy Rao [AIR 1985 Kant 270 : ILR 1985 Kant 2930] .) *****
31. The Privy Council in Satish Chandra Chatterji v. Kumar Satish Kantha Roy [AIR 1923 PC 73 : (1923-24) 28 CWN 327] laid down as under:
"Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who make them -- proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dextrous knave would escape.""
(emphasis supplied)
20. So far as the facts of the present case is concerned, the petitioners herein except raising the objection against the withdrawal of the suit, not placed anything before the trial Page 40 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined Court on 12.02.2007 i.e. date of withdrawal of suit. It was not even pleaded by petitioners on said date that any fraud has been played by the plaintiff with the Court. Even during the course of hearing and or in application dated 13.02.2007 filed below Ex. 180, defendant No. 2 had not stated any fraud played by plaintiff. Thus, in view of such glaring distinguishable facts of the present case, the decision of Delhi High Court in the case of Awaneesh Chandra Jha (supra) would not be applicable which is otherwise have no binding effect to this Court but only have a persuasive value.
21. Prima-facie, it appears that the petitioners having disputes with other Directors and office bearers of defendant No.13 (Company) have objected withdrawal of the suit, thereby they want to re-possession of the properties of defendant No.13 attached as per Exh. 65 and handed over to defendant No.13-company / defendant No.2 as the case may be. According to petitioners, when property of company taken over from them, it ought to have been handed over back to them not to defendant No.2 or as the case may be to company. As such undisputedly the properties were belongs to company which is juristic person/ legal entity and when such entity is not objecting any foul played by defendant No.2 and or plaintiff, the petitioners may be allegedly directors of the company had no right to Page 41 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined object withdrawal of the suit.
22. Thus, in this factual background of the case, for inter-se disputes between the defendants, the plaintiff can not be denied his right available under Order XXIII rule 1 of CPC to withdraw his suit unconditionally. In light of aforesaid, the submissions so made by learned advocates appearing for the respective respondents need acceptance. Whereas, submissions so made by learned advocate Ms. Vadodariya is devoid of any merit requires rejection.
23. Once, the trial Court has allowed the impugned application thereby permitting the plaintiff to withdraw his suit unconditionally, no further application from any of the defendants including the petitioners could have been allowed to file and to be entertained by the trial Court. The petitioners herein had file the application Exh. 180 on 13.02.2007 i.e. next day of withdrawal of the suit, is misconceived application, which ought not to have been entertained by the trial Court and later on, if rejected by the trial Court can not be found fault with.
CONCLUSION
24. The upshot of the aforesaid discussions, observations Page 42 of 44 Uploaded by SALIM(HC01108) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:10:28 IST 2025 NEUTRAL CITATION C/AO/43/1999 JUDGMENT DATED: 21/02/2025 undefined and reasons, It lead to only one conclusion that the trial Court has not committed any error much less any jurisdicitional error while passing the impugned order dated 12.02.2007, thereby rightly permitted the plaintiff to withdraw his suit unconditionally. Consequently, once the suit has been withdrawn unconditionally, nothing would further remains in the suit and all proceedings, which are pending as on date of withdrawal of the suit would not survive and requires to be disposed of if so far not disposed of.
25. Thus, in view of aforesaid, no interference requires of this Court under Article 227 of Constitution of India. I do not find any merit in Special Civil Application No. 4951 of 2007 which requires to be dismissed.
26. In view of the aforesaid, the trial Court has not committed any gross error and or any jurisdictional error while permitting the plaintiff to withdraw his suit unconditionally on 12.02.2007 thereby allowing application below Exh. 170. Special Civil Application No. 4951 of 2007 challenging the impugned order dated 12.02.2007 passed by the 4th Additional Senior Civil Judge, Rajkot below Exh. 170 in Civil Suit No. 237 of 1998 lacks merit is hereby dismissed. Thus, Civil Suit No. 237 of 1998 is held to be withdrawn w.e.f.
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27. Consequently, in view of dismissal of Special Civil Application No. 4951 of 2007, the Appeal from Order No. 43 of 1999 and Special Civil Application No. 11420 of 2002 would not survive and become infructuous on the ground that Civil Suit No. 237 of 1998 is held to be withdrawn.
28. Rule/Notice is hereby discharged. Interim relief if any granted by this Court stands vacated forthwith. No order as to costs.
29. In view of aforesaid, all civil applications are also disposed of accordingly. No order as to costs.
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