JUDGMENT : Sonia Gokani, J. These group of petitions since contain, common questions of facts and law, they are being decided by a common order. 2. For the reference of factual details Special Civil Application No. 13513 of 2011 shall be treated as a lead matter. 3. Petitioner of these petitions is the original defendant No.2 in each civil suit and respondent Nos.1 and 2 are respectively original plaintiff and original defendant No.1 3.1. Plaintiff-respondent No.1 instituted the Regular Civil Suit No. 151 of 2004 before the learned Civil Judge, Gandhinagar in relation to the land bearing Survey Nos. 115/2, 116/1/1, 116/1/2, 116/3 (which shall be referred to hereinafter as “the suit land”). It is the case of the plaintiff that he had applied for becoming a member of the society named as “Aska Co-operative Housing Society Ltd”, and was allotted sub plot No. 33 admeasuring 381 sq.yards on 10th August, 1997. Share certificate of the said plot was given to him on the very same day. Apprehending forcible dispossession and illegal transfer on the part of defendant no.1 prayer of injunction in respect of the suit property was made by the petitioner filing the suit against respondent No.2 - original defendant No.1 . 4. In the present petition, it is alleged by the petitioner that suit was preferred in collusion, to defeat the rights of the present petitioner. Plaintiff-respondent No. 1 allegedly designed to create rights and title illegally in respect of suit property and therefore totally 12 suits were filed against respondent No.2. Present petitioner is the developer of Aska Co-operative Housing Society Ltd. and when he came to know about such suit, he made a request to implead himself as party -defendant as he could not have been left out by the plaintiff. 5. The application for injunction resulted in favour of the plaintiff -respondent No. 1 directing defendant NO.1 (respondent No.2 herein) not to take the possession of the suit plot without following due procedure of law. Court Commissioner was also appointed and report was made elucidating the facts necessary for adjudicating the disputes between the parties. 6. Petitioner challenged such an order of appointing Court Commissioner as also the injunction order granted in favour of the plaintiff-respondent No.1 by preferring Appeal from Order under Order 43 of the Code of Civil Procedure. Court Commissioner was also appointed and report was made elucidating the facts necessary for adjudicating the disputes between the parties. 6. Petitioner challenged such an order of appointing Court Commissioner as also the injunction order granted in favour of the plaintiff-respondent No.1 by preferring Appeal from Order under Order 43 of the Code of Civil Procedure. However, that came to be withdrawn by the petitioner and the parties were directed to expedite the hearing of the suit on merits. 7. An application at Exh. 60 was preferred on 27th June, 2011 on behalf of the plaintiff–respondent No.1 seeking withdrawal of the suit and learned Trial Judge fixed the same for hearing and on 28th June, 2011 such permission of withdrawal was granted which is lamented by the petitioner in this petition urging inter alia that without furnishing the copy of such withdrawal application, as also without affording the opportunity of hearing, the order has been passed by the learned trial Judge permitting original plaintiff-respondent No.1 the withdrawal of the suit which is termed as ex-facie illegal. 8. In short, the challenge to the impugned order dated 28th June, 2011 in the present petition is two folds (i) that the same is without affording any opportunity and (ii) such permission could not have been granted. 9. On issuance of notice, learned advocate Mr. Dhaval Vyas made his appearance and learned senior advocate Mr. D. D. Vyas made submissions on behalf of respondent No.1. 10. Respondent No.2 though served has chosen not to contest the petition. 11. As far as the petitioner is concerned, it is say of the learned advocate Mr. K.V. Shelat appearing for the petitioner that application for withdrawal given by plaintiff, respondent No.1 was in a very surreptitious manner in as much as neither the copy had been furnished to the present petitioner who is defendant No.2 nor was any opportunity given to the advocate appearing for the petitioner to resist such withdrawal. It is say of the learned advocate that after having availed the benefit of both the injunction and obtaining the report of Court Commissioner in respect of suit land without rhyme or reason, withdrawal is sought which is impermissible under the law. He relied upon the following authorities to substantiate his submissions : 1. Rajendra Lal Sur v. Atal Bihari Sur and others reported in Calcutta High Court reported in Vol. He relied upon the following authorities to substantiate his submissions : 1. Rajendra Lal Sur v. Atal Bihari Sur and others reported in Calcutta High Court reported in Vol. XXXIX, Indian Cases Pg.1916 2. Commissioner of Income Tax, Madras and another v. Vinod Kumar Didwania etc. reported in AIR 1987 Supreme Court 1260. 3. Mr. Kishore Kumar v. Mohd.Akbar Siddiqui and others reported in AIR 1994 NOC 194 (ANDH. PRA.) 4. Jagdish Chander Dhawan v. Karam Chand Mehra and anr. reported in AIR 1968 Delhi 181 5. Registrar, Manonmaniam v. Suhura Beevi Educational Trust reported in AIR 1995 Mad 42 6. Bangaru Pattabhirmayya and others v. Bangaru Gopalakrishnaya and others reported in AIR 1986 ANDHRA PRADESH 270 7. Vijay Bachubhai Bhagat v. Rameshchandra N. Vankawala and other of this High Court in Civil Revision Application No. 86 of 2010 with CA No.7234 of 2010 in Civil Revision Application No. 86 of 2010. 12. He has also further pointed out that issues had been framed on 30th July, 2005 vide Exh.41 and Court also had fixed onus on petitioner-original defendant No.2. As far as two of the issues are concerned and therefore, it was within the knowledge of the Trial Court that defendant No. 2 is the contesting party as well and without availing opportunity of hearing to such contesting party, no order could have been passed. He also said that petitioner was contemplating to request for transposing itself as the plaintiff and there also exists his right of asking for the cost. 13. Learned senior advocate Mr. D.D. Vyas submitted forcefully that the root of entire matter is examined, defendant No. 1 is politically heavy weight person who attempted to take law in his hands and therefore, all original allottee's who purchased the plots needed to rush to the Court for seeking appropriate redressal. According to him, some disputes of accounts were going on between the Aska Cooperative Housing Society Ltd. and present petitioner. It was the say of the petitioner that one Sudhaben was allotted the very plot but it is a matter of fact that the allotment to the respondent No.1 was on 10th August, 1997, whereas to Sudhaben, allotment is allegedly in the year 1999 which is much subsequent. It was the say of the petitioner that one Sudhaben was allotted the very plot but it is a matter of fact that the allotment to the respondent No.1 was on 10th August, 1997, whereas to Sudhaben, allotment is allegedly in the year 1999 which is much subsequent. Moreover, after the injunction was granted in favour of respondent No.1, Misc.Civil Appeals were filed by this petitioner and all the appeals met the same fate of disposal since they were all withdrawn. Moreover, it is say of the learned senior advocate that plaintiff is the dominus litus who has right to withdraw the suit at any time against one or all defendants. Present petitioner, if had any grievance, he can file another suit. However, he cannot insist on the plaintiff to continue with the suit against his wish and will and estopp him from exercising his right to abandon the claim. Reliance is placed on some of the following judgments to substantiate his points . 1. Shiv Prasad v. Durga Prasad and another reported in AIR 1975 Supreme Court 957 2. Kalidas Ramubhai Patel v. Viratkumar Shobhagmal Mehta and other of this High Court in SCA 5051 of 2006 3. K.S. Bhoopathy and others v. Kokila and others reported in AIR 2000 Supreme Court 2132 4. Anil Dinmani Shankar Joshi and another v. Chief Officer, Panvel Municipal Council,Panvel and another reported in AIR 2003 Bombay 238 5. Sagar Tatoba Devtale v. Sangli Miraj and Kupwad Municipality reported in AIR 2003 Bombay 240 6. Malaji Bhudhaji Thakore v. Lalaji Jagaji Thakore reported in 998 (O) GLHEL-HC 214131 7. M/s. Hulas Rai Baij Nath v. Firm K. B. Bass and Co. reported in AIR 1968 Supreme Court 111 8. Patel Dineshbhai Mohanbhai v. Deed.Naranbhai Ramdas Thro' Legal Heirs reported in 2005 (1) GLH 505 9. Kandapazha Nadar and Ors. v. Chitraganiammal and Ors. reported in AIR 2007 Supreme Court 1575 14. Having thus heard both the parties and having also scrutinised the record, it emerges that respondent No.1 herein in all the petitions had filed the respective suits for their respective plots situated at Gandhinagar. One sudhaben who is said to have been allotted the very plot subsequently, nearly after two years of allotment to the respondent No.1. The merits of the disputes between the parties of collusion of petitioner with the respondent No.2 is not to be gone into. One sudhaben who is said to have been allotted the very plot subsequently, nearly after two years of allotment to the respondent No.1. The merits of the disputes between the parties of collusion of petitioner with the respondent No.2 is not to be gone into. Suffice to note at this stage that the suit preferred by the respondent No. 1 was sought to be withdrawn by preferring Exh.60 on 27th June, 2011 and order of withdrawal was made on 28th June, 2011. It is not in dispute that the present petitioner was not heard when such an application was moved and the order of withdrawal was made by the trial court. Pertinent would be to profitably reproduce order XXIII Rule 1 of Code of Civil Procedure at this stage : "Order XXIII-Withdrawal and Adjustment of Suits : (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 sub rule (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 persons. (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 a 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 preclude 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 plaintiffs.]" 15. This rule permits the plaintiff to abandon his suit on part of the claim against one on all the defendants at any time. And when he seeks no permission to institute another suit afresh in respect of the some subject matter, at the most Court would exercise its power to grant cost to other side. 16. In case of Patel Dineshbhai Mohanbhai (Supra) question decided by this Court was whether the plaintiff has absolute right to withdraw the suit unconditionally and it is held herein that he does have such an absolute right. However, as an exception Court can refuse it in case where there is a counterclaim or set-off. By a detailed discussion of various aspects, this issue was examined and the Court held that there was material irregularity committed by the Trial Court in not exercising the jurisdiction of permitting the plaintiff who wanted to withdraw the suit unconditionally. As plaintiff of the original suit cannot be compelled to continue the suit by permitting the third party to be joined as co-plaintiff if such withdrawal is unconditionally sought. 17. In case of M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co. (Supra) the Supreme Court held that the language of Order XXIII Rule 1 Sub Rule (1) gives an unqualified right to the plaintiff to withdraw the suit and if no permission to file a fresh suit is sought under sub-Rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and is precluded from instituting any fresh suit in respect of that very subject matter under sub-Rule(3) of that Rule. And, there is no provision which permits the Court to refuse permission to withdraw the suit and to compel the plaintiff to proceed with the suit. However, only in the event of set-off or counter-claim, different considerations would weigh with the Court. 18. In case of Malaji Bhudhaji Thakore (Supra) this Court also on the similar lines held that in case plaintiff is desiring to withdraw his suit unconditionally, ordinarily nobody can object to such pursis or application nor could the Court decline to grant such prayer and the plaintiff cannot be forced by the Court to continue the suit by substitution of third party. 19. Bombay High Court has gone a step further in its decision rendered in case of Anil Dinmani Shankar Joshi and another v. Chief Officer, Panvel Municipal Council, Panvel and another (Supra) and held that the withdrawal is not dependent on the order of Court as unconditional withdrawal would be complete as soon as the plaintiff intimates his intention to withdraw : "4. In my opinion, what is said by the Apex Court in respect of an application applied with equal force to the suit. Every plaintiff has an unconditional right to withdraw his suit unconditionally. The withdrawal would be complete as soon as the plaintiff files a purshis of withdrawal. The Court may pass a formal order recording the withdrawal and also make an order regarding costs, but the withdrawal is not dependent on the order of the Court. This could apply also where the plaintiff seeks withdrawal of the suit against one or more of the defendants and the withdrawal would be complete against those defendants as soon as the plaintiff files an application/purshis for withdrawal. The Court may then consider whether the suit survives against the other defendants against whom suit is not withdrawn. If it comes to the conclusion that the defendant or defendants against whom the suit is withdrawn was or were necessary parties, the Court would then be entitled to dismiss the suit against all on the ground of non-joinder of the necessary parties. But the Court cannot refuse to allow the withdrawal on the ground that the person against whom suit is sought to be withdrawan is a necessary party." 20. But the Court cannot refuse to allow the withdrawal on the ground that the person against whom suit is sought to be withdrawan is a necessary party." 20. In case of Kalidas Ramubhai Patel (Supra) of this Court in Special Civil Application No. 5051 of 2006 (Coram: Mr.M.R.Shah, J) held that if the litigant did not have any interest during the pendency of the litigation, it is difficult to say that his right to continue litigation exists even after his interest does not subsist. This judgment in short permits the party to withdraw the suit unconditionally. 21. As against this set of judgments authorities sought to be relied upon by learned advocate Mr.K.V.Shelat if are examined, in case of Commissioner of Income Tax, Madras and another v. Vinod Kumar Didwania etc. (supra) Apex Court discussed the abuse of process of law whereby Prohibitory orders under Section 132(3) of I.T.Act issued to assessee with respect of his goods in 3 godown's. Assessee removed goods from godown's on strength of ex-parte injunction and thereafter withdrew his writ petition. This strategy was deprecated by the Supreme Court. 22. In the present case, injunction was operating in favour of the respondent No. 1. It was essentially to protect the allotment which was made in favour of respondent in the year 1997. However, with the withdrawal of the suit such injunction also has been vacated. Therefore, it cannot be said that any disadvantage is taken by respondent No.1 . As far as report of Court Commissioner is concerned with regard to possession minus the requisite documentary evidence for establishing prima facie case of respondent No.1 particularly in respect of suit land, trial Court could not have granted the injunction or direction for panchnama through the Court Commissioner under Order XXVI Rule 4 of the Code of Civil Procedure. In any case, it is a well settled law that the panchnama could not be used for creating evidence. So therefore, this authority will not help the cause of the petitioner herein. 23. In the decision of Andhra Pradesh in case of Mr. Kishore Kumar v. Mohd. Akbar Siddiqui and others (Supra), it has been said that whatever benefits that were initially gained by the plaintiff by way of interim orders of the Court, would naturally vanish and cease to exist and the interim orders becomes non est, the moment plaintiff withdraws the suit. Kishore Kumar v. Mohd. Akbar Siddiqui and others (Supra), it has been said that whatever benefits that were initially gained by the plaintiff by way of interim orders of the Court, would naturally vanish and cease to exist and the interim orders becomes non est, the moment plaintiff withdraws the suit. In the matter before the Andhra Pradesh High Court while withdrawing the suit, trial Court had failed to give specific direction on the question of restoration of the status of the property, as it stood prior to the obtaining interim injunction. Facts being completely different, this authority will not have any baring on the issue before this Court. 24. In case of Jagdish Chander Dhawan v. Karam Chand Mehra and anr. (Supra) in a suit of dissolution of partnership and taking of accounts, after the matter was adjourned for numerous times, Suit was permitted to be withdrawn in absence of one of the vital and interested defendants that for the purpose of considering the question whether the plaintiff should be called upon to pay cost to the second defendant or, the second defendant should have been given notice of this application for withdrawal of the suit and should have been heard, according to the Delhi High Court this not only constituted mere error in the procedure or error of law but that had affected the jurisdiction, as that would also amount to destructive of the confidence of the litigant public. Accordingly, Civil Revision Application was allowed. 25. Madras High Court in case of Registrar, Manonmaniam v. Suhura Beevi Educational Trust (Supra) was deciding the issue of res judicata in wake of filing of second suit after withdrawal under Order XXIII Rule 1 of Civil Procedure Code. It was question of fraud played upon the Court when plaintiff on suppressing the filing and pendency of earlier suit had got the order also on dispensing with the procedure necessary u/s. 80 of the Civil Procedure Code. And therefore, judgment and decree were held to be nullity and non est in the eyes of law. Facts of this case do not help the cause of the petitioner. 26. In Civil Revision Application No. 82 of 2010 of this High Court held that petitioner was neither tenant nor sub-tenant nor was he in possession of the suit premise. And therefore, judgment and decree were held to be nullity and non est in the eyes of law. Facts of this case do not help the cause of the petitioner. 26. In Civil Revision Application No. 82 of 2010 of this High Court held that petitioner was neither tenant nor sub-tenant nor was he in possession of the suit premise. Therefore Court held that he was not having any interest in the suit property and hence had not entertained this revision application. 27. Although, as mentioned herein above, present petitioner could not have precluded respondent No.1 to withdraw the suit, as it is prerogative of the plaintiff to decide whether it wants to continue the suit or not. The Court could not have denied such withdrawal particularly when no permission was sought for filing the suit afresh on the very same ground. The petitioner would have all the rights to independently file the suit against respondent if such cause survives and others. And therefore, merely because it had desired to transpose itself as plaintiff under Order XXIII Rule 2A without there being any application of such a nature on record and without pointing out any such grounds in this petition, such version cannot find acceptability and thus, his objection of withdrawal also cannot be sustained. At the most he could be entitled to the cost as per the discretion of the Court. 28. Needless to say that petitioner herein had impleaded himself as party-defendant and that was permitted for he being either a necessary or proper party. Again, all the parties to the suit are required to be given notice of withdrawal which has admittedly not been done in this case. 29. However, in absence of any application of the petitioner and in absence of any cogent ground having been made out to question such withdrawal, order of withdrawal is not being quashed. And, without relegating the parties to the Trial Court in a suit of 2004, for such limited purpose and directing the Court to hear him on having found that in given set of facts of circumstances as such a withdrawal could not have been denied to the plaintiff, cost is being awarded to the petitioner of these petitions which is the discretion of the Court. This of course is not to dilute the need of serving all the parties to the suit with the application for withdrawal as also requirement of hearing them. Procedurally and technically, in absence of any of the parties to the suit, no proceeding are permitted. However, so as not to further stretch the issue only for completing requisite procedure. Petitioner is being awarded the cost of Rs.1000/- for each matter as at the most it could have been entitled for the cost without even dilating the issue whether such discretion on merit he could have been entitled for. Resultantly, all the petitions stand disposed of in the terms above. Order accordingly.