Judgement Key Points

JUDGMENT - KARNIK D.G., J.: Heard Shri Shah for the applicants and Shri N.V. Walavalkar for the respondent No. 1. None present for the respondent No. 2 though served. Affidavit of service of respondent No. 2 is filed on record.

2. The applicants filed a suit against Chief Officer Panvel Municipal Council as defendant No. 1 and respondent No. 2 herein as defendant No. 2. The petitioner filed a purshis on 11th February, 2001 stating that the respondent No. 1 has granted the necessary permission for constructing of a building and sanctioned the plans and therefore, the plaintiff has no grievance against the respondent No. 1. By the said purshis, the said purshis, the applicants gave up all his claims against respondent No. 1 and sought to unconditionally withdraw the suit against respondent No. 1. The respondent No. 1 gave consent for the said withdrawal. The respondent No. 2 however opposed the said purshis and thereupon by an order dated 20th July, 2002, the trial Court refused the permission to the applicants to withdraw the suit against respondent No. 1. This order is challenged in this revision.

3. Order XXIII, Rule 1 of the Code of Civil Procedure permits the plaintiff at any time after the institution of the suit to abandon the suit or abandon a part of the claim in the suit against all or any of the defendants.

No permission of the Court is necessary for the plaintiff to unconditionally abandon his claim or any part of his claim against all or one or more of the defendants. Abandonment is complete as soon as the plaintiff informs the Court. No order of the Court is necessary though the Court often passes formal order recording the abadonment. In this connection, reference may be made to the decision of the Apex Court in (Shiv Prasad v. Durga Prasad)1, reported in 1975(I) S.C.C. 405 wherein the Court observed in paragraph No. 12 of the judgment as follows :

"Every applicant has a right to unconditionally withdrawn his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the Court. The act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application."

4. In my opinion, what is said by the Apex Court in respect of an application applies with equal force to the suit. Every plaintiff has an unconditional right to withdraw his suit unconditionally. The withdrawal would be complete as soon as the plaintiff files a purshis of withdrawal. The Court may pass a formal order recording the withdrawal and also make an order regarding costs, but the withdrawal is not dependent on the order of the Court. This could apply also where the plaintiff seeks withdrawal of the suit against one or more of the defendants and the withdrawal would be complete against those defendants as soon as the plaintiff files an application/purshis for withdrawal. The Court may then consider whether the suit survives against the other defendants against whom suit is not withdrawn. If it comes to the conclusion that the defendant or defendants against whom the suit is withdrawan was or were necessary parties, the Court would then be entitled to dismiss the suit against all on the ground of non-joinder of the necessary parties. But the Court cannot refuse to allow the withdrawal on the ground that the person against whom the suit is sought to be withdrawan is a necessary party.

5. In view of this, the order of the Court refusing the withdrawal was clearly erroneous and is hereby set aside and it is ordered that the withdrawal of suit against the respondent No. 1 was complete as soon as the plaintiff filed the purshis of withdrawal.

Civil Revision Application is allowed in terms of the above order.

Civil revision application allowed.

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