# Satguru Saran Verma v. District Judge Barabanki & Ors

- **Citation:** (2016) 5 ILRA 1023
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-05
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satguru-saran-verma-v-district-judge-barabanki-ors-43718
- **Pages:** 10

## Headnote

Civil Law- U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section 21 (1) (a) -
Release application - Withdrawal of release application - Application for withdrawal of withdrawal - Order
XXIII Rule 1 C.P.C. - Unilateral act - Abandonment - Section 151 C.P.C. - Inherent powers of Court -
Maintainability - Revision under Section 115 C.P.C. - Alternative remedy under Section 22 of the Act - No
interference - Writ petition dismissed

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.(Para 2)

The judgment of this Court in the case of Prakash Chandra Mishra (supra) was reversed by the Apex Court in
Rajendra Prasad Gupta & Anr. v. Prakash Chandra Mishra & Ors., 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 06.02.2004 passed in FAFO No.2103 of 2003. Reported in (2004 All LJ 1908).

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.

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.

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

## Text

5 All. Satguru Saran Verma Vs District Judge Barabanki & Ors.

1023
never appeared in the said case. After the ex parte order dated 05.11.2004 was passed except for
respondent no. 3 none of the private respondents pursued the matter. So far as respondent no. 3 is
concerned while dismissing the writ petition preferred by him earlier this Court has observed that
his approach too was not bonafide. The relevant portion of the order dated 20.07.2012 is quoted
below:-

"29. However, in the case in hand the conduct of petitioner does not show an
honest and careful pairavi at all. On the contrary, I have no hesitation in observing that petitioner
was thoroughly careless and negligent in defending and pursuing the suit proceedings. Unless he
would have appeared in subsequent proceedings, after filing written statement to adduce evidence
etc., it cannot be said that despite remaining absent for almost four years , still he can be treated a
serious litigant in the matter. Therefore, the decision in Malkiat Singh (Supra) would also lend him
no support."

38. In the circumstances mentioned above, there is no iota of truth in the story put forward
by the respondent no 3. On the contrary, the private respondents have adopted dilatory tactics to
prolong the litigation. Based upon the present materials, this Court is not satisfied that sufficient
cause has been made out to explain the delay of more than eight years in filing the appeal.

39. In the result, the writ petition is allowed. The impugned order dated 31.05.2013 passed
by the Additional District Judge, Court No. 3, Hardoi is set aside and the application for
condonation of delay filed by the respondents is dismissed.

40. As a corollary, the appeal filed by the respondents against the judgment and decree
dated 05.11.2014 shall stand dismissed as barred by time.

41. The petitioner shall be entitled to cost of Rs 50,000/-.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Rent Control No.- 84 Of 2006

Satguru Saran Verma ...Petitioner
Versus
District Judge Barabanki & Ors. ...Respondents

Counsel for the Petitioner:
Mohiuddin Khan
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Mohd. Shakeel.

Civil Law- U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section 21 (1) (a) -
Release application - Withdrawal of release application - Application for withdrawal of withdrawal - Order
XXIII Rule 1 C.P.C. - Unilateral act - Abandonment - Section 151 C.P.C. - Inherent powers of Court -
Maintainability - Revision under Section 115 C.P.C. - Alternative remedy under Section 22 of the Act - No
interference - Writ petition dismissed

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.(Para 2)

The judgment of this Court in the case of Prakash Chandra Mishra (supra) was reversed by the Apex Court in
Rajendra Prasad Gupta & Anr. v. Prakash Chandra Mishra & Ors., 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 06.02.2004 passed in FAFO No.2103 of 2003. Reported in (2004 All LJ 1908).

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.

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.

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.

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."
5 All. Satguru Saran Verma Vs District Judge Barabanki & Ors.

1025
The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena Vs. Bhim Sen
& others, AIR 1966 Allahabad 84 FB, and we agree with this view.

Accordingly, we are of the opinion that the application praying for withdrawal of the withdrawal application
was maintainable. We order accordingly." (Para 14)

Held: Para-(16,17,18,19,20)
1. 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. 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.For the reasons aforesaid, no interference with the orders impugned in the
present writ petition is called for.

2. The writ petition is devoid of merit and is accordingly dismissed.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.

Case Law discussed:

Smt. Raisa Sultana Begam & Ors. v. Abdul Qadir & Ors., AIR 1966 All 318 -(Para 11)
Upendra Kumar & Ors. v. District Judge, Azamgarh & Ors., 1997 (15) LCD 820 -(para 12).
Prakash Chandra Mishra & Anr. v. Rajendra Prasad Gupta & Ors. 2004 All LJ 1908-(para13).
Rajendra Prasad Gupta & Anr. v. Prakash Chandra Mishra & Ors.,AIR 2011 SC 1137 -(para14, 16).
Jet Ply Wood Pvt. Ltd. & Anr. v. Madhukar Nowlakha & Ors., AIR 2006 SC 1260 - (para 15).
Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) - (para 14).
Raj Narain Saxena v. Bhim Sen & Ors., AIR 1966 All 84 (FB) - (para 14).
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 - (para 15).

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. 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 versus 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
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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.
Learned counsel for the petitioner has placed reliance upon a case reported in 1997 (15) LCD 820,
Upendra Kumar & Ors. v. District Judge, Azamgarh & Ors.
5 All. Satguru Saran Verma Vs District Judge Barabanki & Ors.

1027
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.
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 subrule (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. 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 & Ors. versus Abdul Qadir & Ors. 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 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
5 All. Satguru Saran Verma Vs District Judge Barabanki & Ors.

1029
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. 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 & Anr. v.
Rajendra Prasad Gupta & Ors., 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. There is no allegation
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
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 & Anr. v. Prakash Chandra Mishra & Ors., 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 06.02.2004 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. 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 Vs. Bhim Sen & others, AIR 1966 Allahabad 84 FB, and we agree with this
view.
5 All. Satguru Saran Verma Vs District Judge Barabanki & Ors.

1031
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 reported in AIR 2006 SC 1260, Jet Ply Wood Pvt.
Ltd. & Anr. v. Madhukar Nowlakha & Ors. 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.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Rent Control No.- 105 Of 2014

Smt. Aneesa Khatoon & Ors. ...Petitioners
Versus
Additional District & Sessions Judge, Court No.3 Lko. & Ors. ...Respondents

Counsel for the Petitioners:
Mohd. Aslam Khan

Counsel for the Respondents:
Manish Kumar, Mohd. Naseerullah.

Civil Law- U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section 21 (1) (a) -
Release application - Withdrawal of release application - Application for withdrawal of withdrawal - Order
XXIII Rule 1 C.P.C. - Unilateral act - Abandonment - Section 151 C.P.C. - Inherent powers of Court -
Maintainability - Revision under Section 115 C.P.C. - Alternative remedy under Section 22 of the Act - No
interference - Writ petition dismissed

The dispute relates to two shops and a basement under the said shops, situated on the ground floor of house
no.114/81, Naya Gaon West, Nazirabad, P.S. Aminabad, Lucknow. The suit premises was owned by Mirza
Sharif Beg (since deceased). Mirza Sharif Beg was the husband of respondent no. 2 and father of respondent
nos.3 to 6. After the death of Mirza Sharif Beg in 1983, the respondent nos.2 to 6 became the owners of the
suit premises. The suit premises was originally let out by Mirza Sharif Beg to Mohd. Islam, the husband of
petitioner no.1 and the father of petitioner nos.2 to 7. After the death of Mohd. Islam, the petitioners became
the tenants of the suit premises. (Para 3)
On the basis of the material on record, the appellate authority has expressly returned a finding regarding the
genuine and bona fide requirement of the landlords. The said finding is a finding of fact based on appraisal of
evidence. In any case, in the absence of any compelling necessity there is no occasion to reconsider the
finding of fact recorded by the appellate authority. In the circumstances the finding recorded by the appellate
authority regarding the bona fide need of the landlords cannot be faulted and calls for no interference in
exercise of writ jurisdiction. (Para- 34)

Held: Para-(39,42,43,44,45)

1. The finding recorded by the prescribed authority with respect to the comparative hardship is also perverse.
It is settled by a catena of decisions of the Apex Court that if during the pendency of the release application,
the tenant, does not make any effort to search for an alternative accommodation, then the question of
comparative hardship has to be decided against him.