Orissa High Court
Prema Chanda Barik vs Prafulla Kumar Mohanty on 23 April, 1987
Equivalent citations: AIR1988ORI33, AIR 1988 ORISSA 33, (1987) 5 REPORTS 333 (1987) 2 ORISSA LR 21, (1987) 2 ORISSA LR 21
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT H.L. Agrawal, C.J.
1. In this writ application, the question which arises for consideration is as to whether an application for withdrawal of a suit itself can be withdrawn by the applicant.
2. The matter arises out of a house rent case. The petitioner is the tenant. Opposite Parties 1 and 2 had filed a case for eviction of the petitioner under Section 7, Orissa House Rent Control Act, 1967, in the Court of the House Rent Controller, Jaipur, after having purchased the house from Khetrabasi Samant on 19-3-1984. Petitioner, after appearing in the proceeding, made an application for a direction to opposite parties 1 and 2 to produce the sale deed so as to enable him to take a proper defence. The Controller by his order dated 17-9-1986 rejected the prayer on certain reasons which are not relevant to be gone into. Against that order, the petitioner filed O.J.C. No. 2674 of 1986 in this Court for a direction to the landlords for production of the sale deed. In that case, in the counter-affidavit the opposite parties stated that they had since already filed the document in the proceeding. In that view of the matter the writ application was disposed of by order dated 9-12-1986 with a direction to the petitioner to file written statement within three weeks.
3. During the pendency of the said writ application, on 27-10-1986 an application was filed by the landlords before the Controller for withdrawal of their case. The stand of the petitioner is that on that account there was no necessity to file any written statement as directed by this Court. On 2-1-1987, however, the landlords filed another application before the Controller stating that they do not want to pursue the application dated 27-10-1986 for withdrawal of the proceeding and the Controller by the impugned order dated 3-1-1987 (Annexure-1) allowed the proceeding to continue in spite of objections of the petitioner. The present writ application has, therefore, been filed by the petitioner-tenant. It has been stated that on the facts and circumstances mentioned above, the Controller was not justified in allowing the proceeding to continue any more in view of the withdrawal application of opposite parties 1 and 2.
4. It is submitted by the learned counsel for the petitioner that under the scheme of Order 23, Rule 1, Civil P.C. once an application is made by a plaintiff to abandon his suit, it becomes effective as soon as it is done. He placed strong reliance upon the case of Smt. Raisa Sultana Begam v. Abdul Qadir, AIR 1966 All 318. There, no doubt, a view in favour of the petitioner has been taken. It has been held : --
"Since withdrawing a suit is a unilateral act to be done by the plaintiff, it requires no permission or order of the Court and is not subject to any condition; it becomes effective as soon as it is done just as a compromise does. Any information of it given to the Court is no part of it, so also any order passed by the Court on receiving the information."
On reference to several cases, the Allahabad High Court took the view that right to withdraw having been expressly conferred by Rule 1(1) and there being no provision conferring the right to revoke the withdrawal, there is no justification for saying that the right to withdraw includes in itself a right to revoke the withdrawal. The only situation in which this withdrawal is permissible according to this case is when the application 'in fact' was vitiated by something like a fraud practised upon the party, as in that event, the suit was never withdrawn at all.
5. Similar view has also been taken by a learned Judge of the Delhi High Court in the case of Curwell (India) Ltd. v. Sahib Singh, AIR 1983 NOC 78, where, on reference to the case of Shiv Prasad v. Durga Prasad, AIR 1975 SC 957 it has been observed that an act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the appeal.
6. It, therefore, becomes necessary to refer to the Supreme Court case. That was a case under Rules 89 and 100 of Order 21, Civil P.C. In that case, earlier the judgment-debtor had made an application under Rule 90 for setting aside the sale and thereafter made the second application under Rule 89. As the second application under Rule 89 was not maintainable unless the application under Rule 90 was withdrawn, the question was whether in the absence of a separate application for withdrawal of the Rule 90 application, Rule 89 application was maintainable. In answer to this question the Court held that where in the subsequent application under Rule 89 the applicant mentioned that he was withdrawing his prior application under Rule 90 and also filed a separate application to that effect, his application under Rule 89 was maintainable, and for the purpose of withdrawal, it was not necessary that an order to that effect should be recorded by the Court. The applicant had merely to convey to the Court that he was withdrawing his application. In my view the observations of the Supreme Court in the circumstances of the case there cannot be applied to the case of an application for withdrawal under Order 23, Rule 1.
7. The question, however, has fallen for consideration before various other High Courts, such as Madras, Kerala, Calcutta, Bombay and Patna. All these High Courts have dissented from the Allahabad view and have clearly laid down that the plaintiff applying to abandon his suit unconditionally has a locus poenitentiae until his petition has been acted upon by the Court, and he can withdraw his petition at any time before an order is made as prayed for in his petition.
The Calcutta High Court in the case of Rameswar Sarkar v. State of West Bengal, AIR 1986 Cal 19 has gone a step further and held that even if the Court has allowed an application for withdrawal of a suit, it can in its inherent powers allow withdrawal of the said application. I, however, need not travel so far for this case.
8. At the outset, I may mention that there should be a distinction between abandonment of a claim and its withdrawal. If the claim has been abandoned, then the abandonment cannot be cancelled by the Court. I find an authority also in support of this view in the case of Attili Rajagopala Rao v. A. V. Bhanoji Rao, AIR 1940 Mad 765. It may further be noticed that Order 23, Rule 1 does not contemplate filing of an application for withdrawal. The Court, therefore, has to act upon the information received by it regarding the plaintiffs desire to withdraw the suit or abandon any part of the claim by passing an appropriate order. Where on a petition for withdrawal, no orders have been passed by the Court, there does not appear to be any reason as to why the applicant cannot withdraw the application before the Court acts upon it. Withdrawal would become irrevocable only when the Court has applied its mind to the question of withdrawal brought to its notice. It may perhaps thereafter be not open to the applicant to resile from that situation.
9. As indicated earlier, this view has been taken by the Madras High Court in the case of Lakshmana Pillai v. Appalwar Alwar Ayyangar, AIR 1923 Mad 246, the Kerala High Court in the case of Thomas George v. Skariah Joseph, AIR 1973 Ker 140, the Patna High Court in the case of Jagarnath Keyal v. Nagar Mull, AIR 1962 Pat 426 and the Bombay High Court in the case of Yeshwant Govardhan v. Totaram Avasu, AIR 1958 Bom 28. In the Bombay case, it was observed that in doing so, there is no injustice to the defendant. If the defendant cannot compel a plaintiff to continue his suit, he cannot equally compel a plaintiff not to withdraw his withdrawal. I find myself in full agreement with the view expressed in all these cases.
10. Mr. Patra has also cited the case of Rasiklal Rathor v. Smt. Maitroi Sukhla, AIR 1974 Orissa 158. But that case has got no bearing to the facts of the present case as there the question was regarding the liability for costs in granting withdrawal of a case by the Court.
11. I, therefore, come to the conclusion that a plaintiff or an applicant continues to have a locus poenitentiae until his petition has been acted upon by the Court, and he can withdraw his petition at any time before the Court passes an order on that application. The House Rent Controller has, therefore, not committed any error of law, much less any error of jurisdiction. The Controller now must dispose of the case expeditiously.
12. This application thus has got no merit and it is dismissed with costs. Hearing fee is assessed at Rs. 150/- only.
D.P. Mohapatra, J.
13. I agree.