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2016 DIGILAW 2115 (ALL)

SATGURU SARAN VERMA v. DISTRICT JUDGE BARABANKI

2016-05-31

RAKESH SRIVASTAVA

body2016
JUDGMENT Hon’ble Rakesh Srivastava, J.—Whether the Prescribed Authority/Civil Judge (Junior Division), Court No. 13, Barabanki was justified in permitting the respondent No. 3 to withdraw the application for withdrawl of P.A. Case No. 6 of 1999, Mangal Prasad v. Satguru Saran Verma, instituted by the respondent No. 3 under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘1972 Act’), is the short question to be answered in this writ petition. 2. The dispute relates to a shop situated at Mohalla Kanoongoyan, Near Gurmandi, Pargana and Tehsil Nawabganj, District Barabanki of which Sri Mangal Prasad - the respondent No. 3 is the owner - landlord and Sri Satguru Saran Verma - the petitioner is a tenant. On 29.1.1996, the respondent No. 3 moved an application under Section 21 (1) (a) of 1972 Act, before the Prescribed Authority, for release of the shop in dispute on the ground that he bona fide required the said shop for carrying on his own business. The case was registered as P.A. Case No. 6 of 1996. The petitioner filed his written statement controverting the facts stated and the averments made in the said application and contested the claim of the respondent No. 3. 3. On 1.11.1999, the respondent No. 3 moved an application (Kha-43) before the Prescribed Authority stating therein that in view of the averments made in the written statement, the petitioner was a mere licensee, and as such the former had filed a suit for ejectment of the petitioner in the Court of Civil Judge (Senior Division), Barabanki in which 25.11.1999 was the date fixed, and as such the respondent No. 3 did not want to prosecute the release application against the petitioner and was withdrawing the same. The Prescribed Authority was requested to permit the respondent No. 3 to withdraw the release application. The petitioner filed his objection denying the fact that he was a licensee. It was further stated by the petitioner that the Civil Court had no jurisdiction to entertain the suit. It was specifically pleaded by the petitioner that there was no provision under the 1972 Act for withdrawal of an application made under Section 21 of the 1972 Act, and as such the application for withdrawal was liable to be rejected with costs. It was specifically pleaded by the petitioner that there was no provision under the 1972 Act for withdrawal of an application made under Section 21 of the 1972 Act, and as such the application for withdrawal was liable to be rejected with costs. After the objection was filed by the petitioner, the respondent No. 3 did not press the application for withdrawal and an endorsement to that effect was also made on the application for withdrawal moved by him. The Prescribed Authority, thereafter, fixed a date for the evidence of the respondent No. 3. On the next date, the respondent No. 3 filed his evidence in the form of an affidavit. On 7.12.2004, the petitioner moved an application (Ga-47) stating therein that by moving the application (Kha-43) the respondent No. 3 had abandoned his suit and as such the release application was liable to be dismissed. According to the petitioner it was not open to the respondent No. 3 to withdraw the application (Kha-43) dated 1.11.1999. 4. On 7.12.2005, the Civil Judge (Junior Division), Court No. 13, Barabanki dismissed the application (Ga-47) moved by the petitioner for dismissal of the case. Against the order dated 7.12.2005 mentioned above, the petitioner preferred a revision No. 106 of 2006 under Section 115 Code of Civil Procedure which too was dismissed at the admission stage by the learned Incharge District Judge, Barabanki vide judgment dated 6.5.2006 on the ground that the only remedy available to the petitioner against the order passed by the Prescribed Authority was by way of filing an appeal under Section 22 of the 1972 Act. 5. The order dated 6.5.2006 passed by the Incharge District Judge, Barabanki and the order dated 7.12.2005 passed by the Civil Judge (Junior Division), Court No. 13, Barabanki are under challenge in the present writ petition. 6. The learned counsel for the petitioner has vehemently submitted that the application for withdrawal of suit, moved by respondent No. 3, could not be withdrawn, as it was a unilateral act on the part of the respondent No. 3, and did not require any permission or order of the Court. The learned counsel has submitted that the action of abandonment is complete with the filing of application, and once the application for abandonment was made it could not be withdrawn. The learned counsel has submitted that the action of abandonment is complete with the filing of application, and once the application for abandonment was made it could not be withdrawn. Learned counsel for the petitioner has placed reliance upon a case in Upendra Kumar and others v. District Judge, Azamgarh and others, 1997 (15) LCD 820. 7. Per contra, the learned counsel for the respondent No. 3 has supported the impugned orders. The learned counsel has submitted that it was always open to the respondent No. 3, to withdraw the application moved by him for withdrawal of the suit. 8. Heard Shri Mohd. Arif Khan, learned Senior Advocate assisted by Mohiuddin Khan, learned counsel for the petitioner and Shri Mohd. Shakeel, learned counsel for the respondent No. 3. 9. Order XXIII Rule 1 of the Code of Civil Procedure reads 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 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 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 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 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 authorize 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.” 10. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal. Prior to 1976 amendment of the Code, Rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a suit, namely, (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal was governed by sub-rule (1) thereof, as it stood then, which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants ‘withdraw’ his suit or abandon a part of his claim. The second category was governed by sub-rule (2) thereof which provided that where the Court was satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. Sub-rule (3) of the former Rule 1 of Order XXIII of the Code provided that where the plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in sub-rule (2) he would be liable to such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Since it was considered that the use of the word ‘withdrawal’ in relation to both the categories of withdrawal - also led to confusion, the rule was amended to avoid such confusion. 11. In the case of Smt. Raisa Sultana Begam and others v. Abdul Qadir and others, AIR 1966 Allahabad 318, a Division Bench of this Court held that withdrawing a suit was a unilateral act to be done by the plaintiff and it required no permission or order of the Court and was not subject to any condition as it became effective as soon as it was done. Paragraph 8 of the said report is quoted below: “Since withdrawing a suit is a unilateral act to be done by the plaintiff, 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. The act is like a point and not continuous like a line having a beginning and an end. Either it is done or not done; there is nothing like its being done incompletely or ineffectively. The consequence of an act of withdrawal is that the plaintiff ceases to be a plaintiff before the Court. If he is the only plaintiff and withdraws the whole of the suit, the suit comes to an end and nothing remains pending before the Court; if he is only one of several plaintiffs, he ceases to be a party and the suit of only the other plaintiffs continues. If he is the only plaintiff and withdraws the whole of the suit, the suit comes to an end and nothing remains pending before the Court; if he is only one of several plaintiffs, he ceases to be a party and the suit of only the other plaintiffs continues. If he withdraws only a part of the suit that part goes out of jurisdiction of the Court and it is left with only the other part. This is the natural consequence of the act; a further consequence imposed by Sub-rule (3) is that he cannot institute any fresh suit in respect of the subject-matter. He becomes subject to this bar as soon as he withdraws the suit. It follows as a corollary that he cannot revoke or withdraw the act of withdrawal. If he is absolutely barred from instituting a fresh suit, it means that he is absolutely barred from reviving his status as a plaintiff before the Court. The bar on his instituting a fresh suit would be meaningless if he were permitted to revoke the withdrawal and get himself restored to the status of a plaintiff in respect of the withdrawn suit. There is no provision allowing revocation of the withdrawal.” 12. By placing reliance on the case of Smt. Raisa Sultana Begam (supra) a learned Single Judge of this Court in the case of Upendra Kumar (supra) has held that a unilateral act of withdrawal or abandonment was complete as soon as it was made without depending on any order being made thereon by the Court or its acting upon the same. It was held that the changes brought about in sub-rule (1) of Order XXIII of the Code by the insertion of the word ‘abondon’ in place of withdrawal, made no difference to the principle laid down in the case of Raisa Sultan (supra) on the contrary after the amendment the said principle would apply with greater force. Paragraph 8 of the said report is quoted below : “8. Admittedly, the present case does not come within the exceptions referred to in the case of R. Rammurthi (supra) since such abandonment does not require any permission of the Court. Therefore, by a simple analogy unilateral act of the plaintiffs in the manner of filing the application intimating the Court of abandonment become absolute as soon as such an application is filed. Therefore, by a simple analogy unilateral act of the plaintiffs in the manner of filing the application intimating the Court of abandonment become absolute as soon as such an application is filed. The action of abandonment is complete with the filing of the application. Once abandoned the same cannot be withdrawn since it would have the effect of revival of the suit itself, namely, in other words it would be operative against sub-rule (4) prohibiting institution of fresh suit. Inasmuch as the moment it is abandoned it comes to a dead end. After the abandonment if he seeks to recall abondonment it would be an act of the institution of fresh suit. The principle laid down in the case of Raisa Sultan (supra) does not seem to me of any lesser effect because the changes brought about in sub-rule (1) by the insertion of the word ‘abondon’ in place of withdrawal. On the other hand the said principle would apply with greater force in such a case. It is no more withdrawal of a suit but is an abandonment of the right. The word “abandon” means to relinquish, surrender or give up one’s claim for interest. Once relinquished the abandonment is complete. The act of abandonment is a volition. It is not dependent on an another’s will. It is a right or liberty that is exercised. The exercise is complete as soon formally expressed by means of an application. If after exercise of the act to relinquishment is sought to be withdrawn, it would be picking up of the abandoned cause after the period during which it remains abandoned or relinquished. There is no scope of survival of abandonment or relinquishment after the act of abandonment is exercised.” 13. Relying upon the cases of Smt. Raisa Sultana Begam (supra) and Upendra Kumar (supra) a learned Single Judge of this Court in the case of Prakash Chandra Mishra and another v. Rajendra Prasad Gupta and others, 2004 All LJ 1908, held that an application under Order XXIII Rule 1 of the Code to withdraw an application for withdrawal of a suit was not maintainable. It was held as follows : “7. In view of the above ruling it is clear that the present one is the case of abandonment of the suit and it was complete as soon as application was filed. It was held as follows : “7. In view of the above ruling it is clear that the present one is the case of abandonment of the suit and it was complete as soon as application was filed. There is no allegation of any fraud or collusion etc. In this view of the matter order of the Court below cannot be sustained. Thus the first point raised by the respondent has no merit.” 14. The judgment of this Court in the case of Prakash Chandra Mishra (supra) was reversed by the Apex Court in Rajendra Prasad Gupta and another v. Prakash Chandra Mishra and others, AIR 2011 SC 1137 . The Apex Court has held that Section 151 CPC has to be interpreted to mean that every procedure is permitted to the Court for doing justice unless expressly prohibited. The Apex Court has held that there is no express bar in filing an application for withdrawal of the withdrawal application. Paragraphs 2 to 8 of the said report are being extracted below: “2. This appeal, by special leave, has been filed against the impugned judgment of the High Court of Allahabad dated 6.2.2004 passed in FAFO No. 2103 of 2003. Reported in (2004 All LJ 1908). 3. It appears that the appellant was the plaintiff in Suit No. 1301 of 1997 before the Court of the Civil Judge (Junior Division), Varanasi. He filed an application to withdraw the said suit. Subsequently, it appears that he changed his mind and before an order could be passed in the withdrawal application he filed an application praying for withdrawal of the earlier withdrawal application. The second application had been dismissed and that order was upheld by the High Court. Hence, this appeal by special leave. 4. The High Court was of the view that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without any order on the withdrawal application. Hence, the second application was not maintainable. We do not agree. 5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the Court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the Court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. 5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the Court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the Court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application. 6. In Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (1882), Mr. Justice Mahmood, the celebrated Judge of the Allahabad High Court, observed : “Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed.” 7. The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena v. Bhim Sen and others, AIR 1966 Allahabad 84 FB, and we agree with this view. 8. Accordingly, we are of the opinion that the application praying for withdrawal of the withdrawal application was maintainable. We order accordingly.” 15. Apart from the above, in the case in Jet Ply Wood Pvt. Ltd. and another v. Madhukar Nowlakha and others, AIR 2006 SC 1260 , the Apex Court has held in paragraph 25 as under : “25. The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the Court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , as follows: “It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.” 16. In view of the law laid down by the Apex Court, there cannot be any dispute that an application for withdrawl of an application for withdrawl of suit is maintainable. 17. In so far as the order dated 6.5.2006 passed by the Incharge District Judge, Barabanki is concerned, Sri Mohd. Arif Khan, Senior Advocate has fairly conceded that against the order dated 7.12.2005 passed by the Civil Judge, revision under Section 115 of the Code was not maintainable. 18. For the reasons aforesaid, no interference with the orders impugned in the present writ petition is called for. 19. The writ petition is devoid of merit and is accordingly dismissed. 20. The release application moved by respondent No. 3 is pending since the year 1996. In the circumstances, the Prescribed Authority is directed to decide the application moved by respondent No. 3 under Section 21 (1) (a) of the Act on merit within a maximum period of six months from the date of production of certified copy of this order without granting unnecessary adjournment to either of the parties.