Mr. R. C. Lahori, J. ( 1 ) WITHDRAWAL of a withdrawal application? ( 2 ) WHETHER a plaintiff can withdraw an application to withdraw the suit -isa question arising for decision. Jaideep, Sandeep and Smt Pushpa are respectivelythe two sons and the wife of one Sudhir Kumar Gupta who is defendant No. 2. Itappears that defendant No. 2 has made an alienation of the suit property in favourof Inder Chand Jain, the defendant No. 1. According to the plaintiffs, Sudhirkumar defendant No. 2 had only one-eighth share in the property which wasancestral in character. The alienation is sought to be avoided by seeking a decree ofdeclaration that the same was void and not binding on the co-parcenery. ( 3 ) THE suit was in progress when on 14. 12. 1993, Jaideep Gupta, plaintiff No. I filed an application under Order 23 Rule 1 read with Section 151 Civil Procedure Code wherein hemade the following prayers : " (i) the plaintiff-applicant be kindly allowed towithdraw the abovenoted suit and the same be dismissed as withdrawn; (ii) thename of the applicant be deleted from the array of the plaintiffs". This applicationwas accompanied by yet another application under Section 151 Civil Procedure Code requesting thecourt to record the oral statement of the plaintiff-applicant Jaideep Gupta insupport of his application filed under Order 23 Rule 1 read with Section 151 CPC. ( 4 ) THE date on which the two applications were filed was not a date of hearingin the suit. The Court directed notices on both the applications to be issued to otherparties in the suit, i. e. the defendants and other plaintiffs. ( 5 ) TODAY, when the applications have come up for hearing, Jaideep plaintiffno. 1 present in the Court has prayed for withdrawal of his abovesaid twoapplications. He has stated that he was pressurised by the defendants into movingthe abovesaid applications and now by his own free volition he did not want topress the applications and rather wanted to withdraw them. Learned Counselappearing for the defendants has opposed the prayer made by the plaintiff No. 1 today. He has stated that he was pressurised by the defendants into movingthe abovesaid applications and now by his own free volition he did not want topress the applications and rather wanted to withdraw them. Learned Counselappearing for the defendants has opposed the prayer made by the plaintiff No. 1 today. He has submitted that an application for an unconditional withdrawal of suithaving been moved, the withdrawal was completed in so far as the plaintiff No. 1was concerned; the prayer for withdrawal did not depend on the leave of the Courtfor its efficacy; and hence the suit should be deemed to have been withdrawn in sofar as plaintiff No. 1 is concerned, on 15. 12. 1993 itself i. e. the date on whichapplications were moved and it was immaterial whether or not any order on theapplications was passed by the Court. Reliance has been placed by the learnedcounsel for the defendants on a decision of Supreme Court in Shiv Parshad v. Durga Parshad, AIR 1975 S. C. 957 and a Single Bench decision of this Court inbharat Bhushan Gupta v. Rajkumar Gupta, 51 DLT 39 as also on a Division Benchdecision of Allahabad High Court in Raisa Sultana v. Abdul Qadir, AIR 1966allahabad 318. ( 6 ) BEFORE this Court may proceed to examine the decisions relied on by thelearned Counsel for the defendants, let it be noted that there is weight of authorityfor the proposition that an application for withdrawal of the suit can be withdrawnat any time before its disposal by the Court. ( See Thomas George v. Skarish Joseph, AIR 1973 Ker 140 , Jagemath Keyal v. Nagar Mull AIR 1962 Pat 426 ; Yeshwant Goverdhan v. Totaram Avasu, AIR 1958 28 and Lakshmana Pillai v. Appalwaralwar Auuangar AIR 1923 Mad 246. ( 7 ) IN the opinion of this Court, the law laid down by their Lordship of thesupreme Court in Shiv Parshad s case ( supra) is not applicable to the facts of thecase at hand. Shiv Parshad s case does not deal with Order 23 Rule 1 Civil Procedure Code or withwithdrawal of a suit. It was a case where the provisions contained in Rules 89 and90 of Order 21 came up for the consideration of their Lordships. An applicationunder Rule 90 for setting aside the sale had been moved and thereafter anapplication under Rule 89 was moved. It was a case where the provisions contained in Rules 89 and90 of Order 21 came up for the consideration of their Lordships. An applicationunder Rule 90 for setting aside the sale had been moved and thereafter anapplication under Rule 89 was moved. Rule 89 (2) provides- "where a personapplies under Rule 89 to set aside the sale of immovable property he shall not unlesshe withdraws his application be entitled to make or prosecute an application underthe rule. "the judgment debtor moved an application under Rule 89 and therein hementioned that he was withdrawing his prayer made in application under Rule 90. He also filed a separate application to that effect. Their Lordship of the Supremecourt held that the application under Rule 89 was maintainable though no specificorder was passed by the Court permitting withdrawal of the application under rule90. It is clear that the very factum of filing of an application under Rule 89incorporating a statement that the applicant was withdrawing his prior applicationunder Rule 90, had amounted to withdrawal in the eye of law. ( 8 ) BHARAT Bhushan Gupta s case (supra), a Single Bench decision of this Courtrefers to the Allahabad decision in Raisa Sultana s case. It also takes note of Calcuttahigh Court decision in Rameshwar Sarkar v. State of West Bengal - AIR 1986calcutta 19 taking a view to the contrary. Bharat Bhushan Gupta s case also had peculiar facts. On the summons issuedto the defendant, the plaintiff had made an endorsement to the effect that he waswithdrawing the case. A learned Single Judge of this Court held that the withdrawal was not before the Court and hence was capable of being revoked. In thatcontext the learned Single Judge went on to observe as under : "sub rule (1) of Rule 1 of Order 23, Code of Civil Procedure, gives unqualifiedright to a plaintiff to withdraw or abandon a suit. Admittedly the rule doesnot require any order in the case of withdrawal. No leave or order isnecessary. The permission of the Court is necessary only when the plaintiffwants to file a fresh suit in respect of the same cause of action. Plaintiff can alsowithdraw his suit with liberty to bring a fresh suit. Admittedly the rule doesnot require any order in the case of withdrawal. No leave or order isnecessary. The permission of the Court is necessary only when the plaintiffwants to file a fresh suit in respect of the same cause of action. Plaintiff can alsowithdraw his suit with liberty to bring a fresh suit. But the question is, if thewithdrawal is not before the Court or with the leave of the Court but is doneby making an endorsement on the summons can be come to the Court andstate that he wants to revoke that withdrawal? Mr V. B. Andley appearing forthe petitioner contended that the words "at any time" in Sub-rule (1) meansat any stage after the institution of the suit and before its disposal. No formalorder is necessary for withdrawal of a suit. But the proceedings must showthat the plaintiff has withdrawn the suit or part of the claim. The language ofsub-rule (1) affirms the unqualified right of the plaintiff to withdraw orabandon a suit. . There is no provision in the Code which requires the Courtto refuse permission to withdraw a suit or to compel a plaintiff to proceedwith his suit. This is so because withdrawal of the suit under Sub-rule (1) iscomplete as soon as it takes place and in any case when the Court is informedof it. That being so there is no question of a right to revoke such withdrawal. No order is necessary to effectuate it. So far as the legal position is concernedthere is no quarrel with the same. But each fact has to be weighed on itsmerits. "( 9 ) THE learned Single Judge has not dissented from the view taken by thecalcutta High Court in the case of Rameshwar Sarkar s case (supra) wherein it hasbeen held that in a proper case an application for withdrawal of the suit may beallowed to be withdrawn and suit proceeded with. ( 10 ) BEFORE this Court what is being relied on by the learned Counsel for thedefendants from Bharat Bhushan Gupta s case is not the ratio but the observations. ( 11 ) A Division Bench of Allahabad High Court in Raisa Sultana s case has held: "the right to withdraw suit is not fettered by any conditions; it is an absoluteright which a plaintiff can exercise at the sweet will at any time before thejudgment is delivered. ( 11 ) A Division Bench of Allahabad High Court in Raisa Sultana s case has held: "the right to withdraw suit is not fettered by any conditions; it is an absoluteright which a plaintiff can exercise at the sweet will at any time before thejudgment is delivered. " "since withdrawing a suit is a unilateral act to be done by the plaintiff, itrequires no permission or order of the Court and is not subject to anycondition, 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 orderpassed by the Court on receiving the information" "on withdrawal certain orders may be passed by the Court but they are notfor giving effect to the withdrawal, but to give effect to consequences arisingout of the withdrawal. Order 23 Rule I does not require any order, there canbe no question of an order if no application is to be made by the plaintiff. " "the right to withdraw has been expressly conferred by Rule 1 (1); there is noprovision conferring the right to revoke the withdrawal and there is nojustification for saying that the right to withdraw includes in itself a right torevoke the withdrawal. " ( 12 ) THE abovesaid decision of Allahabad High Court as also of Mysore Highcourt in Amalgamated Electricity Co Ltd. v. Kutubuddin Rajesaheb Chancha, AIR 1970 Mysore 155 taking a view similar to Calcutta High Court s view have beencommented upon by the High Court of Karela in Thomas George s case (supra ). The learned Judge has held : - "it appears to me that though no order on an application for withdrawalunderorder 23 Rule 1 (1) is called for, nevertheless withdrawal becomesirrevocable only when the Court has occasion to exercise its mind on thefactum of withdrawal brought to its notice. After that moment it is not opento the party to back out of it. Until that is brought to its notice, the withdrawalhas not been acted upon. " (emphasis supplied) ( 13 ) I find myself in respectful agreement with the view taken by the Karelahigh Court. There are added reasons. After that moment it is not opento the party to back out of it. Until that is brought to its notice, the withdrawalhas not been acted upon. " (emphasis supplied) ( 13 ) I find myself in respectful agreement with the view taken by the Karelahigh Court. There are added reasons. I may refer to a Full Bench decision of Highcourt of Madhya Pradesh in Budhulal Kasturchand v. Chhotelal, AIR 1977 MP 1 and usefully extract a few observations made therein though in the context ofsection 148 CPC. The Full Bench has held : "so long as the Court does not record aformal order disposing of the suit orproceedings, it continues to have the jurisdiction to extend the time granted"to a party for performing an act, notwithstanding it having already expired. " "the Court does not cease to have jurisdiction until it makes an order finallydisposing of the proceeding before it. " (emphasis supplied) ( 14 ) SO long as the Court is seized of the proceedings and the proceedings havenot actually terminated of its own, the Court retains jurisdiction to pass appropriate orders, take note of the prayers made by the parties and cure the adverseconsequences, flowing from the act of any party before it, if the same be capable ofbeing cured without prejudice to the other side dispensation of justice shorn oftechnicalities, being of paramount consideration, A perusal of the contents of theapplication under Order 23 Rule 1 moved by the plaintiff Jaideep Gupta and theprayer part quoted hereinabove clearly indicates that the plaintiff No. 1. hadwanted the leave of the Court to withdraw from the suit and an order to be passeddismissing the suit as withdrawn. He had also by filing a separate applicationprayed for his statement being recorded. The application under Order 23 Rule 1cpc stood in need of the order of the Court to be effective. Neither the statementofthe plaintiff No. 1 had been recorded, nor the Court had passed any order. Beforethe statement of the plaintiff could be recorded and an order on the applicationunder0rder23 Rule 1 Civil Procedure Code could be passed, the plaintiff No. 1 has made it clear thathe had been pressurised into moving the application and now he did not want towithdraw from the suit. Such a prayer cannot be refused from being consideredmerely because the applicant had earlier filed an application under Order 23 Rulei CPC. Such a prayer cannot be refused from being consideredmerely because the applicant had earlier filed an application under Order 23 Rulei CPC. ( 15 ) BOTH the I. As. No. 10733/93 (u/order 23 Rule 1 CPC) and No. 10734/93 ( u/sec. 151 Civil Procedure Code praying for recording oral statement in support of IA 10733/93)are dismissed as withdrawn.