Sudhir Agarwal, J.— 1. Heard Sri Shiv Nath Singh, learned counsel for the applicants. Sri Sharad Malviya and Sri Arvind Srivastava, Advocates are present for respondents. 2. The applicant is the plaintiff-appellant and had instituted second appeal under Section 100 C.P.C. assailing judgment dated 10.01.1983 passed by Vth Additional District Judge, Kanpur whereby Lower Appellate Court while allowing defendants' appeal set aside the Trial Court's judgment and decree dated 18.09.1980, whereby plaintiff-appellant's suit was decreed. 3. The Original Suit No. 1861 of 1970 was instituted seeking ejectment of defendants-respondents from House No. 59/86 of which plaintiff-appellant claimed to be landlady and owner and defendants-respondents, the tenants. The plaintiff had also claimed arrears of rent and mesne profits etc. The suit was decreed by Trial Court in respect to relief No. A, B, C and D with cost vide judgment dated 18.09.1980. The judgment and decree of Trial Court was reversed by Lower Appellate Court vide judgment dated 10.01.1983. 4. The second appeal was entertained by this Court on 05.09.1983 on the following substantial questions of law: (a) Whether the view of Lower Appellate Court that suit was not travel as a regular suit by Munsif Court but was travel as a small cause suit by Small Cause Court is erroneous in law? (b) Whether the view of Lower Appellate Court that quit notice is invalid is erroneous in law? (c) Whether the finding that relationship of landlord and tenant did not exist between parties is vitiated in law? 5. While this appeal was pending the plaintiff-appellant through her Advocate, Sri Shyam Narain moved withdrawal application dated 24.05.2010 requesting the Court to permit appellant to withdraw second appeal with liberty to file writ petition. The defendants-respondents though had no objection to plaintiff-appellant in abandoning her appeal but objected the prayer regarding liberty to file writ petition. Both sides were heard by Court and vide order dated 24.05.2010 the application was allowed and appeal was dismissed as withdrawn but liberty to file fresh writ petition was rejected. The Court has given its detailed reasons therefor and relevant extract of Court's observations, is reproduced as under: "I have heard learned counsel for the parties and perused the record. The application for withdrawal of the second appeal is allowed. As far as granting liberty to file a fresh writ petition the Court declines to grant this relief. The Court has given its detailed reasons therefor and relevant extract of Court's observations, is reproduced as under: "I have heard learned counsel for the parties and perused the record. The application for withdrawal of the second appeal is allowed. As far as granting liberty to file a fresh writ petition the Court declines to grant this relief. It is noteworthy that the suit for ejectment was filed in the year 1970. The litigation has remain pending in the trial court, first appellate court for several year. The second appeal was filed in the year 1983. The case has remain pending in this High Court for a long time of 27 years. The appellant has enjoyed the benefits of litigation. It was open for the open for the appellant to have sought proper advice or he could have been advised accordingly at the initial stages. Under the facts and circumstances of the case and the nature of the dispute which has come up for adjudication the ratio of the above Full Bench judgment is not applicable. The provisions contained in Order 23, Rule 1 of C.P.C. are clear in this regard. In view of the above, the second appeal is dismissed as withdrawn. Interim order, if any, is discharged. All the necessary consequences shall follow immediately." 6. Now this application has been filed by plaintiff-appellant changing her counsel and it is now through Sri Shiv Nath Singh and Sri Satyam Singh, Advocates, whose Vakalatnama is also appended with this application. 7. The order dated 24.05.2010 is sought to be recalled on the ground that erstwhile counsel misconstrued Section 102 C.P.C. as the same was not applicable in appeal in question. It has been stated in para 2 of affidavit that withdrawal application though signed by son of applicant but the applicant and her daughter who are also party in appeal were not taken into confidence and they had never given their consent to withdraw the second appeal which they have been contesting for last 27 years. It is said that applicant deponent engaged a new counsel also, i.e., Sri Akhilesh Kumar Pandey but he was not present when withdrawal application was considered by this Court. 8. This application has been seriously contested by Sri Sharad Malviya and Sri Arvind Srivastava, Advocates appearing for respondents. 9. Having heard the learned counsel, I have also gone through the entire record. 10. 8. This application has been seriously contested by Sri Sharad Malviya and Sri Arvind Srivastava, Advocates appearing for respondents. 9. Having heard the learned counsel, I have also gone through the entire record. 10. The appeal initially was filed by plaintiff-appellant, Smt. Kanteshwari Tiwari, wife of Sri Laxmi Kumar Tiwari, through her Advocate Sri Rudreshwari Prasad. The record shows that subsequently Sri B.P. Shuka and Sri Dinesh Chandra, Advocates also filed their Vakalatnama putting their appearance on behalf of plaintiff-appellant. Then Sri Ajeet Kumar Shukla, and Shyam Narain, Advocates filed their Vakalatnama in November, 2004 as counsels for appellant. None of the counsels have withdrawn their authority/power at any point of time. 11. The appeal in the meantime was dismissed in default on 07.09.1994 and restored on 07.10.2004. Against the order dated 07.10.2004, defendants-respondents approached Apex Court in Special Leave to Appeal (Civil) No. 8360 of 2005. The Apex Court directed this Court to consider matter afresh and dispose of the appeal vide order dated 16.01.2006. The order is reproduced as under: "Having heard the learned counsel for the parties, we are of the opinion that the impugned order having not been taken into consideration the past conduct of the respondent and furthermore not being a speaking order, the High Court should consider the matter afresh, particularly in view of the fact that the second appeal was filed on 1.4.1983. The special leave petition is disposed of with the aforementioned observation." 12. The Apex Court's order was placed before this Court alongwith supplementary affidavit dated 28.07.2006 filed by defendants-respondents no. 1 to 5. 13. Consequently, the restoration matter was considered by Hon'ble S.N. Srivastava, J. and by a detailed order dated 31.03.2007 His Lordship allowed restoration application as well as delay condonation application and directed appeal to be listed for hearing in next cause list. 14. It, however, remain pending for hearing and in the meantime the sole applicant-appellant died on 10.08.2008. Vide order dated 10.07.2009 heirs and legal representatives of deceased were allowed to be impleaded as appellants no. 1/1 to 1/3 and they are, Laxmi Kumar Tewari, husband of appellant, Akhilesh Kumar Tweari, son of appellant and Smt. Pratima Pandey, daughter of appellant. All the three heirs were substituted. The affidavit filed in substitution application was sworn by Sri Akhilesh Kumar Tewari alleging that he was authorised by all the legal heirs. 1/1 to 1/3 and they are, Laxmi Kumar Tewari, husband of appellant, Akhilesh Kumar Tweari, son of appellant and Smt. Pratima Pandey, daughter of appellant. All the three heirs were substituted. The affidavit filed in substitution application was sworn by Sri Akhilesh Kumar Tewari alleging that he was authorised by all the legal heirs. In withdrawal application also, the affidavit was sworn by Sri Akhilesh Kumar Tiwari and he has stated in para 1 of the affidavit that he has been authorised to file application on behalf of his father, Laxmi Kant Tiwari also. 15. The interesting fact is that hearing of second appeal itself commenced before Hon'ble Rakesh Sharma, J. on 09.03.2010. Since it could not complete, the Court passed following order: "Put up on 15.03.2010 for further hearing." 16. On 15.03.2010 the appeal was listed before another Hon'ble Judge, i.e., Hon'ble Rakesh Tiwari, J. and His Lordship observed that since matter has already been heard, it should be placed before the same Hon'ble Judge and accordingly directed the appeal to be placed before Hon. Acting Chief Justice for passing appropriate order. Thereupon the Hon'ble Acting Chief Justice vide order dated 19.03.2010 nominated Hon'ble Rakesh Sharma, J. to hear the appeal. 17. It is thereafter the matter was listed before Hon'ble Rakesh Sharma, J. on 10.05.2010 and 14.05.2010. While the appeal was in process of hearing, it appears that plaintiff-appellant preferred to file withdrawal application and the same was disposed of vide order dated 24.05.2010. 18. It is more than an year thereafter the Recall Application No. 82136 of 2011 alongwith Delay Condonation Application No. 82133 of 2011 were filed. This application has been filed through Sri Shiv Nath Singh and Sri Satyam Singh, Advocates and Vakalatnama has been signed by only plaintiff-appellant no. 1/1, i.e., Laxmi Kant Tiwari. The applicant-appellant no. 1/3 has not joined this application by signing Vakalatnama authorising the aforesaid application. The affidavit has been sworn by Sri Laxmi Kant Tiwari but in para 1 he claims to have been authorised to file this application and affidavit on behalf of applicants-appellants no. 1/1, i.e., himself and 1/2, Akhilesh Kumat Tiwari and 1/3, Smt. Pratima Pandey. Interestingly even this application was dismissed in default by Hon'ble Shishir Kumar, J. on 25.05.2011. 19. Thereafter another recall application alongwith delay condonation application seeking recall of order dated 25.05.2011 passed by Hon. Shishir Kumar, J. was filed. 1/1, i.e., himself and 1/2, Akhilesh Kumat Tiwari and 1/3, Smt. Pratima Pandey. Interestingly even this application was dismissed in default by Hon'ble Shishir Kumar, J. on 25.05.2011. 19. Thereafter another recall application alongwith delay condonation application seeking recall of order dated 25.05.2011 passed by Hon. Shishir Kumar, J. was filed. The interesting thing is this application is supported with an affidavit sworn by Sri Akhilesh Kumar Tiwari. These two applications were allowed by Hon'ble Pankaj Mithal, J. vide order dated 04.07.2012 and that is how the present application has come up before this Court. 20. The aforesaid facts show very clearly that the manner in which and reasons assigned in application to suggest that withdrawal application was filed under some misconception is a patently and apparently false and incorrect. The appeal was already in process of hearing and partial hearing had already concluded. The defendants-respondents were pressing hard for hearing of appeal. The matter was in continuous listing before a Court which had heard appeal partly. At that stage abruptly the application seeking withdrawal of appeal was presented before the Court. Arguments thereupon, by both the sides, advanced and thereupon, the Court passed order. The father and son interchangeably coming to this Court with a stand as suites to them but the facts noticed above show that both for themselves and for each other are pursuing the matter at different stages. 21. The withdrawal of suit by plaintiffs is their prerogative. Sri Shyam Narain, Advocate is and was representing all the plaintiffs-appellants. The application for withdrawal categorically states that deponent has been authorised by all appellants to file application for withdrawal of appeal. The deponent, Akhilesh Kumar Tiwari is the son of plaintiff-appellant no. 1/1 and brother of plaintiff-appellant no. 1/3. Even today Sri Shiv Nath Singh and Sri Satyam Singh, Advoates have filed their Vakalatnama only on behalf of appellant no. 1/1 since it is signed only by Laxmi Kant Tiwari but there is no withdrawal of power or authority of earlier counsels by plaintiffs-appellants even till date. 22. So far as right of parties to withdraw a suit is concerned, the Apex Court in Bijayananda Patnaik Vs. Satrughna Sahu and others, AIR 1963 SC 1566 and Hulas Rai Baij Nath Vs. 22. So far as right of parties to withdraw a suit is concerned, the Apex Court in Bijayananda Patnaik Vs. Satrughna Sahu and others, AIR 1963 SC 1566 and Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co., AIR 1968 SC 111 have said that the right to withdraw a suit in suitor would be unqualified, if no right has been vested in any other party. 23. At this stage Sri S.N. Singh, learned counsel for the applicant stated that application for withdrawal was with a further prayer seeking permission to file fresh writ petition and this Court either could have accepted the prayer as such or ought to have rejected prayer in its entirety but it was not permissible to segregate the prayer by permitting withdrawal and denying liberty to file writ petition. In support thereof he placed reliance on a Single Judge decision of this Court in Balbir Singh Vs. Smt. Sulochhana Devi, AIR 1970 All 382 wherein this Court observed as under: "This is obvious from the fact that the plaintiff's prayer to withdraw the probate application was based on his further prayer that he should be permitted to file any other proceeding or suit as he may be advised. It was joint prayer which could have been either accepted or rejected in toto as stated above. The trial Judge, in my opinion, had no jurisdiction to split it up in two parts and to grant one and refuse the other." 24. The aforesaid view was taken by this Court following two authorities of Madras High Court in Marudachala Nadar Vs. Chinna Muthu Nadar, AIR 1932 Mad 155 ; Veeraswami Vs. Lakshmudu, AIR 1951 Mad 715 and one authority of Calcutta High Court in Kamini Kumar Roy Vs. Rajendra Nath, AIR 1926 Cal 233. He also placed reliance on a Division Bench decision of this Court in Bharat and others Vs. Ram Pratap and others, AIR 1985 All 61 . 25. Having gone through the aforesaid authorities I find that decision of this Court in Balbir Singh (supra) though support his contention but Division Bench decision in Bharat and others Vs. Ram Pratap (supra) does not deal with this proposition. Ram Pratap and others, AIR 1985 All 61 . 25. Having gone through the aforesaid authorities I find that decision of this Court in Balbir Singh (supra) though support his contention but Division Bench decision in Bharat and others Vs. Ram Pratap (supra) does not deal with this proposition. Therein this Court has taken a view that if an application for withdrawal of suit is filed without any further request seeking liberty to institute a fresh suit, on the mere filing of application, the suit would stand withdrawn and the application moved by plaintiff for withdrawal of suit cannot be withdrawn even before any order is passed thereon and for this proposition the Division Bench placed reliance on an earlier Division Bench decision in Raisa Sultan Begam Vs. Abdul Qadir, AIR 1966 All 318 . 26. I find that this part of judgment is no longer a good law inasmuch as the Division Bench judgement in Raisa Sultan Begam (supra) has already been overruled by this Court in the majority decision in Sunni Central Board of Waqfs Vs. Sri Gopal Singh Visharad and others 2010 ADJ Page 1 (SFB)(LB) and this has been referred to and followed by another Single Judge of this Court in M/s Auto Oil Company Majhola Devi Vs. Indian Oil Corporation Ltd. and others, 2011 (5) ADJ 800 . The Hon'ble Single Judge has found that recently even the Apex Court has taken a similar view in Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others, 2011(2) SCC 705 reversing a decision of this Court. The view taken by this Court that once an application to withdraw the suit is filed there is no occasion to file a further withdrawal application to withdraw the earlier application, has been negatived by Apex Court observing that an application praying for withdrawal of withdrawal application was maintainable. 27. Before the Division Bench in Bharat and others Vs. Ram Pratap (supra) the second issue was whether an order allowing withdrawal application with liberty to institute a fresh one without saying anything specifically as to whether liberty has been granted or not can be construed as if the liberty has been refused or granted and thereupon this Court took the view that in absence of anything specific the order allowing application would be construed as if the liberty has been granted. In the present case there is a specific discussion on this aspect and thereafter this Court passed its order. 28. Be that as it may, this is an issue on merits of order dated 24.05.2010. This recall/restoration application cannot be treated to be a review application and that too giving an opportunity to applicant to re-argue the matter. This application has been filed under Order IX Rule 13 though counsel for applicant could not demonstrate as to how aforesaid provision would be attracted. Here is not a case where the order impugned has been passed without hearing counsel for the parties. I am constrained to observe that this Court cannot sit in appeal over the order dated 24.05.2010 to hold that the order has been erroneously passed and, therefore, it should be recalled. It is beyond the authority of this court and the application in question cannot be construed in such a manner. The remedy lies elsewhere. 29. The application is accordingly rejected with costs of Rs. 500/-. _____________