# Smt. Jeera Devi & Anr v. A.D.J. Court No. 12 Varanasi & Ors

- **Citation:** (2023) 5 ILRA 1666
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-09
- **Case number:** Matters Under Article 227 No. 4747 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jeera-devi-anr-v-a-d-j-court-no-12-varanasi-ors-50239
- **Pages:** 19

## Headnote

Law-
Civil
Law-Code
of
Civil
Procedure,1908-Order 23 Rule 1, Order 1
Rule
10-
Whether
the
fact
notwithstanding that a colluding plaintiff
and a defendant may have contrived to
defeat a third party's rights and the
plaintiff,
to
effectuate
that
purpose,
makes an application to unconditionally
withdraw the suit under Order XXIII Rule
1 of the Code, can the third party in
jeopardy be permitted to be substituted
for the withdrawing plaintiff and granted
leave to prosecute the suit; or in any
event, impleaded as a plaintiff under
Order I Rule 10 of the Code and permitted
to pursue the suit?- the Registry is
directed to place the matter urgently
before His Lordship the Hon'ble The Chief
Justice for constitution of a larger Bench.
(Para 10 & 31) (E-15)

List of Cases cited:

## Text

_Characters 0–39,959 of 65,606. This is a partial read: ask again with offset=39959 for what follows._

1666 INDIAN LAW REPORTS ALLAHABAD SERIES
Land Acquisition Officer will afford
opportunity to the petitioner to produce
evidence in support of his case. The Special
Land Acquisition Officer may thereupon
decide the issue.

7 In the circumstances, this petition
succeeds and is allowed. The impugned
order dated 30.04.2022 passed by the
Special Land Acquisition Officer (Sanyukt
Sangathan), Aligarh, Annexure 4 to the
writ petition, is hereby quashed. The
application under Section 28A of the Act is
restored to file of the Special Land
Acquisition Officer (Sanyukt Sangathan),
Aligarh to be heard and determined in
accordance with law after affording the
parties due opportunity.
----------
(2023) 5 ILRA 1666
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matters Under Article 227 No. 4747 of 2019
(CIVIL)

Smt. Jeera Devi & Anr. ...Petitioners
Versus
A.D.J. Court No. 12 Varanasi & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Brij Raj, Sri Atul Dayal (Sr. Advocate)

Counsel for the Respondents:
Sri Shambhu Nath, Sri Pratik J. Nagar, Sri
Triveni Shanker, Sri Awadhesh Kumar

Civil
Law-
Civil
Law-Code
of
Civil
Procedure,1908-Order 23 Rule 1, Order 1
Rule
10-
Whether
the
fact
notwithstanding that a colluding plaintiff
and a defendant may have contrived to
defeat a third party's rights and the
plaintiff,
to
effectuate
that
purpose,
makes an application to unconditionally
withdraw the suit under Order XXIII Rule
1 of the Code, can the third party in
jeopardy be permitted to be substituted
for the withdrawing plaintiff and granted
leave to prosecute the suit; or in any
event, impleaded as a plaintiff under
Order I Rule 10 of the Code and permitted
to pursue the suit?- the Registry is
directed to place the matter urgently
before His Lordship the Hon'ble The Chief
Justice for constitution of a larger Bench.
(Para 10 & 31) (E-15)

List of Cases cited:

1. Meera Rai Vs Additional Sessions Judge &
ors.2017 (12) ADJ 817

2. Smt. Raisa Sultana Begam & ors.Vs Abdul
Qadir & ors.AIR 1996 Allahabad 318

3. The Sunni Central Board Vs Sri Gopal Singh
Visharad 2010 ADJ 1 (SFB)(LB)

4. M/s. Auto Oil Company & anr. Vs Indian Oil
Corporation Ltd. & ors.2011 (5) ADJ 800

5. Bhajan Lal & ors.Vs Smt. Rajmala Daughter
of Kamta Prasad 2013 (2) ALJ 476

6. Rajendra Prasad Gupta Vs Prakash Chandra
Mishra & ors.(2011) 2 SCC 705

7. Smt. Kanteshwari Tiwari (Dead) through L.Rs.
Vs Badri Prasad & ors.2013 (98) ALR 76

8.
M.
Siddiq
(dead)
through
legal
representatives
(Ram
Janmabhumi
Temple
case) Vs Mahant Suresh Das & ors.(2020) 1 SCC
1

9. Anurag Mittal Vs Shaily Mishra Mittal (2018) 9
SCC 691

10. Gopal Krishna Indley Vs 5th A.D.J., Kanpur
& ors.AIR 1981 All 300

11. Ganga Saran Vs Civil Judge, Hapur,
Ghaziabad & ors.AIR 1991 All 114
5 All. Smt. Jeera Devi & Anr. Vs. A.D.J. Court No 12 Varanasi & Ors.
1667
12. Raman Gopi & anr. Vs Kunju Ram Uthaman
2011 SCC OnLine Ker 4028

13. D.VS Lakshmana Rao Vs St.of Karnataka &
ors.ILR 2001 Kar 2689

14. Misc. Application No. 315 of 2022 in Special
Leave Petition (C) No. 6526 of 2020

(Delivered by Hon'ble J.J. Munir, J.)

This is a petition under Article 227 of
the Constitution of India preferred by Smt.
Jeera Devi and Ghanshyam Patel, third
parties to Original Suit No. 154 of 1999,
Munnan Devi v. Smt. Amrawati Devi, who
have been denied leave to continue the suit
on the basis of assignment pendente lite
and further, are faced with an order
permitting withdrawal of the suit by the
plaintiff. This order turning tables for the
petitioners has been passed in an appeal by
the Additional District Judge, Court No. 12,
Varanasi, reversing the Trial Court, which
had granted leave to the petitioners to
continue the suit and declined permission
to the plaintiff to withdraw it.

2. The facts giving rise to this petition,
in necessary detail, are these :

Plot No. 40 admeasuring 0.243
hectare and Plot No. 156 admeasuring 0.72
decimal,
situate
in
Village
Mauza
Saraimugal, Pargana Athagaon, Tehsil
Pindra, District Varanasi was recorded in
the name of one Smt. Munnan Devi. She
was a co-sharer in the two plots to the
extent of a half share along with her cotenure holder, Smt. Ramdei Devi, wife of
Ramdas. One Smt. Amrawati Devi, wife of
Late Panna Lal, claimed that Smt. Munnan
Devi had executed a sale deed of her half
share in the plots of land above mentioned
on 09.10.1998. Smt. Amrawati Devi got her
name recorded as a co-tenure holder along
with Smt. Ramdei Devi, after mutating out
the name of Smt. Munnan Devi in the
revenue records on 11.08.1999. This was
done on the basis of the sale deed dated
09.10.1998. On 08.02.1999, Smt. Munnan
Devi brought a prompt action against Smt.
Amrawati Devi, seeking a declaration that
the sale deed dated 09.10.1998 was null
and void, with a prayer that the declaration
granted be communicated to the SubRegistrar, where the deed had been
registered for recording the declaration. A
permanent injunction was also claimed
against Smt. Amrawati Devi to the effect
that the defendant be restrained from
interfering with the plaintiff's title and
possession in the suit property or otherwise
creating an obstruction in any manner, and
further not to destroy the standing crops in
the suit property. The aforesaid suit brought
by Smt. Munnan Devi against Smt.
Amrawati Devi was numbered on the file
of the Civil Judge (Junior Division) Haveli,
Varanasi as Original Suit No. 154 of 1999.
The short case of Smt. Munnan Devi in the
suit was that the impugned conveyance
dated 09.10.1998 was not her deed. It had
been got executed by Smt. Amrawati Devi
through the agency of an imposter, a
woman, different from Smt. Munnan Devi.
The sale deed was, therefore, impugned as
a void document.

3. On 03.07.2000, a written statement
was
filed
by
Smt. Amrawati
Devi,
contesting the plaintiff's case. It would not
be material, for the purpose of this petition,
to enumerate what her defence was. Smt.
Munnan Devi put in a replication on
29.08.2000. On 30.08.2000, the Trial Court
struck issues, a total of seven. What the
issues were is also not relevant for the
purpose of this petition. The sole plaintiff,
Smt. Munnan Devi, was examined as
P.W.1. She testified in the dock on
1668 INDIAN LAW REPORTS ALLAHABAD SERIES
11.02.2003 and 17.07.2003. Pending suit,
Smt. Munnan Devi executed two sale deeds
- one in favour of Smt. Jeera Devi,
conveying her half share in Plot No. 156,
that is to say, the area of 0.298 hectare out
of the total of 0.596 hectare; and the other
in favour of Ghanshyam Patel, conveying
her half share in Plot No. 40 admeasuring
0.121 hectare out of the total of 0.243
hectare. Both these sale deeds were
executed on 21.05.2011 and admitted to
registration by the Sub-Registrar, Pindra,
Varanasi on 23.05.2011. On the 9th of
February, 2013, Smt. Munnan Devi passed
away, while the suit was still pending.

4. On 15.04.2013, Smt. Phulpatti
Devi, daughter of Smt. Munnan Devi,
applied to be substituted in place of the sole
plaintiff. The substitution application was
granted by the Trial Court on 05.07.2013.
Smt.
Phulpatti
Devi,
the
substituted
plaintiff, seems to have prosecuted the suit
for a period of approximately five years
until 05.04.2018, when she made an
application under Order XXIII Rule 1 of
the Code of Civil Procedure, 19081 seeking
to unconditionally withdraw the suit. The
aforesaid application is numbered on the
record of the Trial Court as Paper No. 45ग.

5. Close on heels of the sudden
termination of action by Smt. Phulpatti
Devi, Smt. Jeera Devi filed an application
bearing Paper No. 48क under Order XXII
Rule 10 of the Code, seeking leave of the
Court to continue the suit.

6. On 22.08.2018, Smt. Jeera Devi
filed objections to the application dated
05.04.2018 made by Smt. Phulpatti Devi,
seeking to withdraw the suit. On the 4th of
July, 2018, Ghanshyam Patel made an
application 54क under Order XXII Rule 10
of the Code, seeking leave of the Court to
continue the suit. On 13.07.2018, Smt.
Jeera Devi and Ghanshyam Patel made an
application, seeking recall of the order
granting substitution in favour of Smt.
Phulpatti Devi, but no orders were passed
on the said application by the Trial Court.
The Trial Court, by its order dated
04.09.2018, allowed the applications 48क
and 54क made by Smt. Jeera Devi and
Ghanshyam Patel, respectively, seeking
leave to continue the suit and rejected the
application 45ग made by Smt. Phulpatti,
praying for withdrawal of the suit.

7. Smt. Phulpatti Devi preferred Misc.
Civil Appeal No. 143 of 2018 to the
District Judge of Varanasi under Order
XLIII Rule 1(l) of the Code, seeking
reversal of the order dated 04.09.2018
passed by the Additional Civil Judge
(Junior Division) Court No. 7, Varanasi.
The appeal, upon assignment, came up for
determination before the Additional District
Judge,
Court
No.
12,
Varanasi
on
04.05.2019, who proceeded to allow the
appeal,
set
aside
the
order
dated
04.09.2018, rejected the two applications
seeking leave to continue the suit and
accepted Smt. Phulpatti Devi's application
to withdraw.

8. Aggrieved by the order dated
04.05.2019,
Smt.
Jeera
Devi
and
Ghanshyam Patel have instituted this
petition
under
Article
227
of
the
Constitution.

9. Heard Mr. Atul Dayal, learned
Senior Advocate assisted by Mr. Brij Raj,
learned Counsel for the petitioners, Mr.
Shambhu Nath, learned Counsel appearing
on behalf of respondent no. 3 and Mr.
Triveni Shanker along with Mr. Awadhesh
5 All. Smt. Jeera Devi & Anr. Vs. A.D.J. Court No 12 Varanasi & Ors.
1669
Kumar, learned Counsel appearing for
respondent no. 4.

10. The question that falls for
consideration in this case is : Whether the
fact notwithstanding that a colluding
plaintiff and a defendant may have
contrived to defeat a third party's rights and
the plaintiff, to effectuate that purpose,
makes an application to unconditionally
withdraw the suit under Order XXIII Rule
1 of the Code, can the third party in
jeopardy be permitted to be substituted for
the withdrawing plaintiff and granted leave
to prosecute the suit; or in any event,
impleaded as a plaintiff under Order I Rule
10 of the Code and permitted to pursue the
suit?

11. Mr. Atul Dayal, learned Senior
Advocate has argued that the right to
withdraw is not absolute under Order
XXIII Rule 1 of the Code and the
withdrawal becomes effective once the
Court passes an order. This is for the reason
that the withdrawal is not without its
entailed consequences, the most obvious
being an order on the item of costs. He
submits that till the Court makes that order,
the Court cannot be said to have become
functus officio and the suit struck off the
file, merely because an unconditional
withdrawal has been prayed by the
plaintiff, lodging an application for that
purpose.

12. The second limb of the submission
is that if the Court can see that the
application for unconditional withdrawal,
assuming that it otherwise operates ipso
facto as a withdrawal of the suit, is a device
to defeat the interest of a third party, who
has come forward either through an
application seeking impleadment under
Order I Rule 10 of the Code or an
application under Order XXII Rule 10,
seeking leave to pursue the suit, the Court
ought not to permit the plaintiff to
withdraw the suit. He submits that if in the
face of a position like this, the plaintiff is
permitted to withdraw the suit, bringing it
to a terminus, two consequences would
inevitably follow : the first is that the third
party whose rights are at stake would fall
into the peril of being defeated about those
rights without a trial; and, the second, that
the third party would be, per compulsion,
driven to bring his own action, which
would inevitably lead to multiplicity of
proceedings.

13. Mr. Dayal, in support of his
submissions, has placed reliance upon a
decision of this Court in Meera Rai v.
Additional Sessions Judge and others2.
Briefly put, in Meera Rai (supra), the facts
were that the plaintiff brought a suit for a
declaration that the suit property, a land
measuring approximately 1800 square feet,
was a common passage that was illegally
sold by one Basant Kumar in favour of the
defendants first set. The plaintiff asked for
a permanent injunction against the first
defendant, restraining her from raising any
construction
over
the
suit
property.
Defendant no. 1 to the suit contested it.
Pending suit, the plaintiff made an
application to withdraw the suit, saying
therein that he had sold his house situate in
Plot No. C9 to a third party, and that he did
not require the suit property as two roads
were there to access the house that he had
sold. Above all, he was left with no right,
title or interest in the suit property, because
he had already sold it. Before an order
could be passed on the withdrawal
application, an application under Order
XXII Rule 10 of the Code appears to have
been filed by the purchasers to permit them
to prosecute the suit, as rights to the suit
1670 INDIAN LAW REPORTS ALLAHABAD SERIES
property had been assigned to them. The
said application was contested by defendant
no. 1, who said that no right in the suit
property came to the purchasers, who now
claim through original plaintiff. The Trial
Court allowed the application under Order
XXII Rule 10 of the Code and dismissed
the
withdrawal
application.
A
miscellaneous appeal from the said order
was dismissed by the District Judge. Three
of the many contentions that were urged
before this Court in Meera Rai need to be
noticed and that could be best done by
quoting from the report, the way the
contentions were urged :

4. Challenging the said order, the
Misc. Appeal No. 37 of 2014 was filed
which was dismissed on 9.12.2016 and
hence this petition.

5. To challenge the order of
substitution, learned Counsel for the
petitioner vehemently urged :

(i) The application moved by the
respondents 2 to 5 claiming interest in the
suit property was in fact an amendment
application filed under Order 6 Rule 17
C.P.C. as they had prayed to delete the
name of the plaintiff and amend the array
of parties. The said application was
wrongly treated by the Courts below as
substitution application under Order 22
Rule 10 C.P.C.

(ii) The filing of substitution
application under Order 22 Rule 10 C.P.C.
would require leave of the Court and for
granting such leave, the Court has to apply
its mind as to whether any right or interest
had devolved upon the person seeking
substitution. There is no prayer seeking
leave in the application 27 Ga/1 moved by
the transferees of the original plaintiff
namely the applicants and as such the order
of substitution cannot be sustained.

(iii)
The
trial
Court
had
mechanically allowed the said application
without giving any reasoning for the grant
of leave. In absence of reasons, the order
impugned cannot be sustained.

(iv) The withdrawal application
moved by the plaintiff was prior to filing of
the
substitution
application
by
the
respondents 2 to 5. The effect of moving of
the withdrawal application would be that
the suit automatically stood withdrawn and
in absence of any suit being pending as on
the date of filing of the application, the
application of respondent No. 2 to 5 could
not be entertained. In other words. it is
submitted that with the moving of the
withdrawal application, withdrawal was
automatic, no order was required to be
passed on the said application. Reliance is
placed upon the judgment of this Court in
Ram Palat Chaturvedi (Deceased) By lrs v.
Chandra Bali Shastri and another, (2008) 1
ARC 143.

(v) Further, in any case, in the
event of assignment of any right or interest
in the suit property, the assignees may be
substituted but the name of the assignor
would not be deleted from the array of
parties. With reference to the amended
plaint
(appended
with
supplementaryaffidavit) it is vehemently contended by
learned Counsel for the petitioner that with
the amendment of plaint i.e. deletion of the
plaintiff, it would be a new suit. Any transfer
by the plaintiff during the pendency of the
suit though gives right to the assignor to
pursue the suit under Order 22 Rule 10, with
the leave of the Court, but the said suit cannot
be pursued as a new suit. As no cause of
action
survives
with
the
applicants/respondents they may be permitted
to bring the fresh suit but they could not have
been impleaded/substituted in the earlier suit
more so when it already stood withdrawn.
5 All. Smt. Jeera Devi & Anr. Vs. A.D.J. Court No 12 Varanasi & Ors.
1671

(vi) The contention is that the
plaintiff is dominus litus, it is his wish to
continue his suit and the Court cannot
compel him to pursue the suit that too when
he moved a withdrawal

(vii) The Act of deletion of name
of the original plaintiff itself establishes
that it was an amendment application
seeking amendment of plaint by the
persons who claimed to have got right and
interest in the suit property. Reliance is
placed upon the judgment of Apex Court in
Hafiz Mushtaq and others v. Mohammad
Idris and others, 1965 All LJ 828.

(viii) The suit filed by the
predecessor of defendant No. 2 (late
Kedarnath
Singh)
filed
against
the
Cooperative society namely Original Suit
No. 978 of 1993 is pending consideration.
No relief of cancellation of sale-deed dated
5.6.2012/6.6.2012 executed in favour of
defendant No. 1 had been sought by the
original plaintiff namely Hemant Kumar
Agarwal. In view of the registered saledeed
being
in
existence,
the
applicants/subsequent purchasers cannot
seek a relief of declaration and injunction.

(ix) Lastly, it is submitted that the
right to sue cannot be transferred under
Section 6(e) of The Transfer of Property
Act.
In
the
application
for
substitution/impleadment based on the saledeed of the plaintiff the plea regarding
transfer of alleged Rasta could not have
been entertained as it would only be a
transfer of right to sue for the said Rasta.
Reliance is placed upon the judgment in the
case of Ch. Sajjan Mal v. Bodh Raj
Ramkishan Mal and others, AIR 1934
Pesawar 89. Moreover, no such right has
been transferred in favour of the applicants
by the Original Plaintiff. The alleged Rasta
(subject-matter of instant suit) is not even
shown in the sketch map which gives
description of property and is part of the
sale-deed of the applicants.

6. Learned Counsel for the
respondents, on the other hand, submits
that by the sale-deed dated 19.10.2013, all
rights and interest in the suit property were
devolved upon the applicants. Under Order
22 Rule 10 of the Code of Civil Procedure,
they have a right to pursue the suit on the
doctrine of lis pendens. Any denial thereof
would render them non-suited. Moreover,
by the instant suit, the plaintiff sought
declaration of easementry rights i.e. the
right to way to approach his house by a
common road which has been obstructed
by the defendant No. 1. Reliance is placed
upon the judgment of Apex Court in Amit
Kumar Shaw and another v. Farida Khaton
and another, AIR 2005 SC 2209 and in
Sharadamma v. Mohammed Pyrejan (Dead)
through L.Rs. and another, 2015 (6) AWC
5721, to submit that the transferee pendente
lite can be added as a proper party if his
interest in the subject-matter of the suit is
substantial and not just peripheral.

14. Repelling the contentions aforesaid
urged on behalf of the defendant-petitioner,
it was held :

14. The first argument of the
learned Counsel for the petitioner that with
the withdrawal of the present suit by
application under Order 23 Rule 1 C.P.C.
moved by the plaintiff, the assignees lost
their right for substitution is found devoid
of force in as much as no order was
required to be passed on the withdrawal
application. The decision of this Court in
Ram Palat Chaudhary (supra) relied by the
learned Counsel for the petitioner itself
observes that though with the moving of
withdrawal application on the part of the
plaintiff, the withdrawal becomes effective
but the order passed by the Court on the
1672 INDIAN LAW REPORTS ALLAHABAD SERIES
said application is to give effect to the
consequences arising out of the withdrawal
(reference has also been made to Sheikh
Khalikuzzama (D) through L.R.s and others
v. Sheikh Akhtaruzzaman (D) and others,
2004 (2) AWC 1636 and Smt. Raisa
Sultana Begam and others v. Abdul Qadir
and others, 1966 AIR (All) 318).

15. In case, the said argument of
the learned Counsel for the petitioner is
accepted it would result in multiplicity of
litigation in as much as the applicants
would be required to bring a fresh suit for
declaration on the same cause of action put
forth by the original plaintiff. This cannot
be the intention of the provisions as
contained in Order 23 Rule 1 C.P.C. Thus it
is held that in order to give effect to the
consequences of withdrawal, a specific
order is to be passed by the Court
concerned on the withdrawal application.
Even otherwise, on the principle of doctrine
of lis pendens and the provisions as
contained in Order 22 Rule 10 C.P.C. the
transferees
could
not
be
denied
substitution. On this principle also it cannot
be said that the trial Court had erred in
dismissing the withdrawal application filed
by the original plaintiff in view of pending
substitution application of the subsequent
transferees.

16. The said view taken by this
Court is fortified from the decision of the
Apex Court in Amit Kumar Shah (supra)
wherein it has been held that the transferee
though is not entitled, as of right, to be
impleaded in the suit, however, the Court
has a discretion to make him a party. The
transferee pedente lite can be added as a
proper party, if, his interest in the subjectmatter of the suit is substantial and not just
peripheral. Under Order 22 Rule 10 C.P.C.
an assignee pendente lite may be joined as
party with the transfer of interest in the
immovable property. He is a representative
of the transferor from whom he has
acquired that interest.

17. Even otherwise there may be
a situation where the plaintiff or the
defendant, as the case may be, may collude
with the other parties after transfer of his
interest in the property, subject-matter of
the pending suit. The object of Order 22
Rule 10 C.P.C. is to curb any such situation
and further to avoid multiplicity of
litigation.

18. It is, however, the discretion
of the Court to allow substitution of an
assignee of a party during the pendency of
the suit. The words ''by leave of the Court''
used in Order 22 Rule 10 C.P.C. cannot be
construed to mean that any specific order is
required to be passed by the Court on a
separate application seeking such leave.
The order allowing substitution under
Order 22 Rule 10 C.P.C. would itself mean
that the Court thought it fit to grant leave to
the assignees to pursue the suit. The
argument of learned Counsel for the

15. To the understanding of this Court,
it is one thing to hold that in order to curb
multiplicity of litigation or mischief by
parties to a subsisting litigation through
fraud or collusion between them, affecting
rights of third parties, the Court may, in its
discretion, grant leave to permit an assignee
from one of the parties pendente lite to
pursue or defend the suit, or otherwise to
implead such assignee of a plaintiff to the
action or may be a defendant, depending on
the orientation of his rights, but quite
another to say that a suit is not withdrawn
by the mere making of the application
under Order XIII Rule 1 of the Code, if the
case be of collusion affecting rights of third
parties etc., and still the Court would retain
jurisdiction to substitute under Order XXII
Rule 10 or implead under Order I Rule 10
of the Code an affected third party. There
5 All. Smt. Jeera Devi & Anr. Vs. A.D.J. Court No 12 Varanasi & Ors.
1673
appears to be little quarrel about the
proposition
that
to
a
pending
suit,
substitution in favour of an assignee
pendente lite ought to be granted with leave
to pursue the suit under Order XXII Rule
10 of the Code in order to substantially
protect the rights of the party in favour of
whom the interest from the original
plaintiffs stands assigned, or may be,
devolved. However, the difficulty arises
when the original plaintiff has made an
application, first in point of time, to
withdraw the suit before the assignee
comes and makes his application seeking
substitution and/or impleadment under
Order XXII Rule 10 or under Order I Rule
10 of the Code. The answer to the said
issue rests, in turn, upon answer to the
question whether the mere making of an
application under Order XXIII Rule 1 of
the Code results in withdrawal of the suit
ipso facto or the making of an affirmative
order by the Court granting that application
is necessary.

16. This question has engaged the
attention of Courts for a long time in this
country and in the past, there has been
considerable
divergence
of
opinion
amongst the High Courts. The controversy
appears to have rested for a while with the
decision of a Division Bench of this Court
rendered in Smt. Raisa Sultana Begam
and others v. Abdul Qadir and others3. In
Raisa Sultana Begam (supra) Desai, C.J.,
speaking for their Lordships of the Division
Bench, after noticing the various divergent
authorities, held :

8. Since withdrawing a suit is a
unilateral act to be done by the plaintiff,
requires no per mission 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
conies 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 subr. (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. We
respectfully agree with Horwill, J. in
Rajagopala Rao v. Bhanoji Rao, AIR 1940
Mad 765, where he observed at p. 766 :-

"O. 23. . . . .does not make any
provision for withdrawing a withdrawal;
and so it would seem that there is no
provision in the Code whereby the
withdrawal of a suit . . .can be cancelled.
The only thing that can now be done for the
1674 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff is to grant her permission ...... to
file a fresh suit."

It stands to reason that when on
withdrawal the plaintiff ceased to be a party
and the Court ceased to have jurisdiction
over his suit and thus became functus
officio nothing but a fresh suit can again
invest the Court with jurisdiction over it.
As far as the withdrawn suit is concerned
the suit is at an end and no further
proceeding can be taken in it; the suit and
the plaintiff do not exist and no application
such as one for revoking the withdrawal
can be made in the suit or by the plaintiff or
entertained. So long as the suit was pending
the plaintiff had a status and could exercise
the right of withdrawing the suit which
vests in a plaintiff; after he ceased to be the
plaintiff on withdrawal he is left with no
status and cannot make any application or
cannot do any act as a plaintiff. We are
supported in this view by the decision of
Ross and Pearson, JJ., in Rajah Shamsher
Bahadoor v. Mahomed Ali Beg, (1867) 2
Agra HCR 158.

9. In Ram Bharos Lall v. Gopee
Beebee (1874) 6 NWP 66, it was held by
another Bench of this Court, of which
Pearson, it was a member, that a plaintiff
who has withdrawn his suit is at liberty to
rescind the act of withdrawal at any time
before the final judgment because :-

"It is difficult to understand why
a plaintiff should have liberty to withdraw
from a suit and not have equal liberty to
rescind the act of withdrawal at any time
before final judgment".

We may with respect point out
the reason and it is that the right of a
plaintiff to withdraw his suit is not a divine
right but a right expressly conferred upon
him by O. 23, R. 1 and no right

All322 is similarly conferred
upon him to revoke or rescind the
withdrawal. So long as he remains the
plaintiff he may do any act which he may
do in that capacity; he cannot, after
withdrawal of the suit resulting in the loss
of the capacity, do an act which can be
done only in that capacity. The learned
Judges
distinguished
Rajah
Shumsher
Bahadoor, (1867) 2 Agra HCR 158 (supra)
on the ground that in that case there was a
long
interval
of
time
between
the
withdrawal
and
the
revocation
of
withdrawal whereas in this case there was
an interval of only one day. With great
respect, we find it difficult to understand
that whether withdrawal can be revoked or
not depends upon the delay with which it is
revoked. The question is of a right and not
of delay with which it is sought to be
exercised. In Raj Kumari Devi v. Nirtya
Kali Debi, (1910) 7 Ind Cas 892 (Cal), it
was held at p. 893 that

"it was competent to the plaintiff
to recall her petition of withdrawal at any
time before the final order had been
passed."

The learned Judges relied upon
the case of (1874) 6 NWP 66, and
distinguished
the
case
of
Shumsher
Bahadoor (1867) 2 Agra HCR 158. It has
not been pointed out by them why an order
of the Court is required in order to
complete or effectuate the withdrawal and
have not dated any authority for imposing
this condition. We have pointed out that on
withdrawal certain orders may be passed by
the Court but they are not for giving effect
to the withdrawal, but to give effect to
consequences arising out of the withdrawal.
O. 23, R. 1 does not require any order;
there can be no question of an order if no
application is to be made by the plaintiff.
We, therefore, respectfully disagree with
the view of the Calcutta High Court. In
Mukkammal v. Kalimuthu Pillay, 15 Ind
Cas 852 (Mad), Sundara Aiyar, J. was of
the view that the plaintiff has a right to
5 All. Smt. Jeera Devi & Anr. Vs. A.D.J. Court No 12 Varanasi & Ors.
1675
revoke the act of withdrawal, while
Sadasiva Aiyar, J. was inclined to the view
that neither can he revoke his withdrawal
application except on good grounds nor can
he be allowed to play fast and loose with
the litigation launched by him at his sweet
will and pleasure. Sundara Aiyar, J. referred
to the absence of any provision in the Code
giving a light to a defendant to insist that a
petition of withdrawal not acted upon by
the Court must be enforced as against the
plaintiff and thought that a mere petition of
withdrawal does not debar the plaintiff
from proceeding with the suit unless, in the
meanwhile, the suit has been dismissed by
the Court. We respectfully disagree as no
order of the Court is required when a
plaintiff withdraws a suit and there is no
justification for saying that the act of
withdrawal is not complete so long as the
Court does not dismiss the suit. The bar
imposed
by
sub-r.
(3)
operates
on
withdrawal and not on any order by the
Court dismissing the suit and must be
deemed to include the prevention of revival
of the suit.

In Lakshmana Pillai v. Appalwar
Alwar Ayyangar, AIR 1923 Mad 246, it
was assumed by Oldfield, J. that an
application for withdrawing a suit is
conditional on the passing of an order
regarding costs. But it seems to us, with
respect to the learned Judge, that there is a
distinction between withdrawal by a
plaintiff of the suit and his liability to be
awarded the costs of the suit. The liability
arises out of the withdrawal but it would be
wrong to argue that so long as the liability
is not imposed the withdrawal is not
complete. There may be an interval of time
between the withdrawal and imposition of
the liability through an order without its in
any way derogating from the effect of the
withdrawal.
The
facts
in
Midnapur
Zamindari Co. Ltd. v. Raja Bijoy Singh
Dudhuria,
AIR
1941
Cal
1,
were
distinguishable because the plaintiff sought
to withdraw from the suit with permission
to file a fresh one and that required an order
from the Court granting permission. There
is a distinction between withdrawal without
liberty to file a fresh suit which is at the
absolute discretion of the plaintiff and
withdrawal with liberty which can be done
only when the Court grants permission. In
this case the Court postponed passing
orders on the application for permission to
withdraw with liberty and before the orders
were passed the plaintiff withdrew the
application. A plaintiff may have a right to
withdraw an application for withdrawal
with liberty but it does not follow that a
plaintiff who withdraws the suit under subr. (1) has a right to revoke the withdrawal
before the Court passes some order. Then
we come to Yeshwant Govardhan v.
Totaram Avasu, AIR 1958 Bom 28, in
which Dixit and Vyas, JJ. held that an
application by a plaintiff withdrawing the
suit requires an order, that so long as no
order is passed it can be withdrawn and that
no reasons are required for his withdrawing
the application. With great respect we find
it difficult to agree. It is true that a Court
has control over the proceedings initiated
by a plaintiff through a suit but the plaintiff
has been given an absolute right to
withdraw from it at any stage and the Court
has no control over this act of withdrawal.
The learned judges said at p. 29

"If. . . . .the plaintiff has a right to
withdraw his suit, he has, equally, a right to
withdraw his withdrawal, and so long as
the Court has not made an order showing
that the withdrawal has become complete
or effective there is always a locus
paenitentiae for the plaintiff to withdraw
his withdrawal."

The right to withdraw has been
expressly conferred by rule 1(1); there is no
1676 INDIAN LAW REPORTS ALLAHABAD SERIES
provision conferring the right to revoke the
withdrawal and there is no justification for
saying that the right to withdraw includes
in itself a right to revoke' the withdrawal.
As we said earlier, certain consequences
arise from the withdrawal which prevent
his
revoking
the
withdrawal,
the
withdrawal is complete or effective as soon
as it takes place, and, in any case, as soon
as information of it is conveyed to the
Court, and no order of the Court is required
to effectuate it or even to recognise it. Then
the learned Judges referred to the order
regarding costs and inferred that the Court
has to make an order after the withdrawal.
Whatever order the Court may, or may have
to make is not regarding the withdrawal but
regarding the effect or consequences of the
withdrawal, which is quite a different
All323 matter. The proposition that a
plaintiff has an absolute right to withdraw
his application for withdrawal is not
accepted universally and we have already
referred to the observations to the contrary.
Lastly,
we
come
to
Masulipatam
Municipality v. Venkatappayya, AIR 1960
Andh Pra 572. Umamaheshwaram and S.
Oamar Hassan, JJ. observed at p. 575 :-

"Without the stroke of the judicial
pen under O. 23, R. 1, sub-r. (3), C.P.C. the
suit is not terminated and that in
appropriate cases the provisions of O. 1, R.
10 or O. 22, R. 10 C.P.C. may be applied."

The order referred to in R. 1, subr. (3) is only one imposing costs upon the
plaintiff on account of his withdrawal from
the
suit;
this
provision
does
not
contemplate any order.

10. In AIR 1958 Bom 28 (supra)
and AIR 1923 Mad 246, the doctrine of
locus paenitentiae was advanced and it was
held that a plaintiff can revoke his
withdrawal of a suit at any time before an
order is made by the Court regarding
withdrawal. With great respect, we may
point out that if locus paenitentiae has to be
allowed it must be allowed by the
legislature and not by the Courts. We see no
reason why we should be so solicitous
about a plaintiff on the threshold of
withdrawal of his suit that we should allow
him locus paenitentiae. There is no reason
why a plaintiff should claim to have locus
paenitentiae and in any case whatever locus
paenitentiae he needs is already there
between his mental decision to withdraw
and his informing the Court of the
withdrawal. He has no locus paenitentiae in
the matter of institution or of compromise
of a suit and there is no justification for
saying that he has locus paenitentiae after
withdrawal of the suit. The doctrine of
locus paenitentiae falls to the ground when
it is realised that he has not to apply for
withdrawing and that he needs neither the
permission of the Court for withdrawing
nor its order allowing, recognizing or
confirming the withdrawal.

11. Our answer, therefore, to the
question referred to us is in the negative.

17. The decision of the Division
Bench in Raisa Sultana Begam making
unconditional withdrawal under Order
XXIII Rule 1 of the Code effective on the
mere making of the application by the
plaintiff was overruled by the Full Bench of
this Court in The Sunni Central Board v.
Sri Gopal Singh Visharad4, where it was
held :

1035. Once a suit is duly
instituted, the Court would pass

order issuing summons to the
defendants to appear and answer the plaint.
Such summons, vide Order V Rule 3, are
required to be signed by the Judge or such
officer as he appointed, and also the seal of
the Court. A suit once duly instituted and
registered in the Court would not struck off
5 All. Smt. Jeera Devi & Anr. Vs. A.D.J. Court No 12 Varanasi & Ors.
1677
from the record of the Court on the mere
communication by the plaintiff orally or in
writing that he intends to withdraw unless
an order is passed by the Court to the said
effect, which would have the legal
consequence of bringing the proceedings
set in motion by instituting the suit, to a
halt. Mere absence of any provision
permitting withdrawal of the application
filed by a plaintiff for withdrawing the suit
does not mean that no such power is vested
in the plaintiff. So long as an order is not
passed by the Court, if the plaintiff informs
the Court by moving an application that he
intends to withdraw the application for
withdrawal of suit, he can always request
or inform the Court that he does not want to
press the application and the same may be
dismissed as not pressed or withdrawn. It is
only
where
the
plaintiff
press
his
application before the Court requiring it to
pass the order for withdrawal of the Suit,
the Court would pass the said order in
accordance with law since it cannot compel
a plaintiff to pursue a suit though he want
to withdraw the same. It would thus be
wholly unjust to hold that once an
application to withdraw the suit is filed by
a plaintiff, he cannot withdraw the same
and the suit would stand dismissed as
withdrawn. This would have serious and
drastic consequences in as much as he
cannot file a fresh suit on the same cause of
action.

1036. Moreover, the existence of
a provision i.e.