JUDGMENT :

1. Being aggrieved and dissatisfied with the order dated 25th November 2017 passed below Exhibit 73 in Civil Suit No.841 of 2015 by the learned Additional Judge, City Civil Court No.09, Ahmedabad (hereinafter be referred to as “the Trial Court”) whereby the learned Judge has allowed the withdrawal of the suit while rejecting the objection raised by the applicant, who is power of attorney holder of one Arvindbhai Babarbhai Bhatia, the applicant has preferred the present civil revision application.

2. Brief facts of the present case is that the plaintiff – Arvindbhai Babarbhai Bhatia and respondent No.1 are real brothers and they have got property from their father by Will and one of the conditions is regarding pre-emption right. It was mentioned in the Will that if any of the son wants to sell his portion of the property, he has to sell to his brother i.e. other son and in case of any of the son refused to purchase the property, in that event, other son is entitled to sell his plot to any third party. It is contended by the plaintiff that his brother respondent No.1 tried to sell his portion of the property and, therefore, he has published notice in the local newspapers whereby the plaintiff has filed objection and informed the respondent that he is ready to purchase the property. It is contended that there was notice transactions between the parties and ultimately, the plaintiff’s power of attorney holder has instituted the aforesaid suit for declaration and permanent injunction against his real brother.

2.1 It emerges that during the pendency of the aforesaid suit, application at Exhibit 73 came to be filed by the original plaintiff which has been objected by the power of attorney holder of the plaintiff and after hearing both the sides, learned Judge was pleased to allow application at Exhibit 73 and the suit was permitted to be withdrawn and rejected the objection raised by the applicant. Now, the applicant has assailed the impugned order passed by the Trial Court on the ground that the same is erroneous and it is based on the pretext that the original plaintiff has sold his land and, therefore, there does not remain the right of pre-emption and on this ground, the suit itself is not maintainable and on that ground, the prayer for withdrawal of the suit was allowed. According to him, it was brought to the notice of the Trial Court that the mischief has been played by the defendants and the suit may not be allowed to be withdrawn. It is contended that the sale deed executed is by playing mischief and accordingly, the civil suit is filed for cancellation of the sale deed. By referring to H.R.P. No.374 of 2017, it is contended that the suit was filed for protecting the right of the original plaintiff as the same was effected by Rasinkumar Babarbhai Bhatia and that suit was not against the original plaintiff and, therefore, the fact of that suit ought not to have been relied upon by the Trial court. He has assailed the observations of the Trial Court regarding the fact that no cause of action survives in the present suit and permitted withdrawal of the suit. It is also averred that there are three power of attorney holders contending to be the power of attorney holder of the original plaintiff and this fact has not been considered by the Trial Court and passed the impugned order. According to him, in view of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter be referred to as “the CPC”), it was the duty of the learned Judge to insist upon the parties to reduce the terms into writing while making withdrawal application. It is contended that on perusal of the withdrawal application, it appears that no terms were produced on record upon which both the parties have arrived at amicable settlement. It is further contended that the Trial Court has failed to appreciate the decision of the Apex Court in the case of Gurpreft Singh Vs. Chatur Bhuj Goft, reported in (1988) 1 SCC 270. It is contended that the origi