Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANDEEP N. BHATT, J.
Lhs Of Decd. Khodaji Shivaji – Petitioner
Versus
Mafaji Moptaji – Respondent
R/Special Civil Application No. 3978 Of 2023
Decided On : 24-03-2023
Withdrawal of Suit - Order XXIII Rule 1 - The court dismissed the petition as the plaintiff had filed a pursis to withdraw the suit unconditionally, and therefore had no right to challenge the impugned order. The court cited relevant judgments and provisions of Order XXIII Rule 1 to support its decision.
Fact of the Case:
The deceased had filed a civil suit for permanent injunction and declaration of property. After the deceased's death, the respondent filed an application to join as a legal heir, claiming to be the deceased's daughter. The petitioners objected, stating that the respondent had never claimed to be the deceased's daughter before and had waived her right to the suit property. The petitioners also alleged that the respondent had entered into an agreement to sell the property to land brokers.
Finding of the Court:
The court found that the petitioners had filed a pursis to unconditionally withdraw the suit, and therefore had no right to challenge the impugned order. The court cited relevant judgments and provisions of Order XXIII Rule 1 to support its decision.
Issues: The main issue was whether the petitioners, who had filed a pursis to withdraw the suit, had the right to challenge the impugned order allowing the respondent to join as a legal heir.
Ratio Decidendi: The court held that the petitioners, having filed a pursis to unconditionally withdraw the suit, had no right to challenge the impugned order. The court cited relevant judgments and provisions of Order XXIII Rule 1 to support its decision.
Final Decision: The court dismissed the petition, stating that the petitioners had no right to challenge the impugned order as they had filed a pursis to unconditionally withdraw the suit.
ORDER :
1. The present petition is filed by being aggrieved and dissatisfied with the order dated 11.05.2022, passed by the 9th Addl. Civil Judge, Mirzapur, Ahmedabad (Rural) in Regular Civil Suit No.300 of 2005 below Exh.70 and 143, whereby the trial Court has allowed the third party application filed by Sakariben Khodaji Shivaji Thakor – respondent No.8 herein for joining as plaintiff in the abovementioned suit.
2.1 Brief facts of the case are as such that the deceased - Khodaji had filed a Regular Civil Suit No.300 of 2005 for permanent injunction and declaration of the property situated at Village: Vejalpur, bearing Revenue Survey No. 988 (New Survey No.315 - on renumbering when transferred the said property to Jodhpur Gam, Ahmedabad) admeasuring 5 acre 36 gutha. It is the case of the petitioners that the present petitioners is having the possession of the land. Further, during proceeding of the suit proceedings, plaintiff Khodaji expired on 15.02.2009, leaving behind his legal heirs i.e. petitioners as well as respondent Nos.1 to 7 herein and accordingly, the present petitioners along with said respondents were brought on record of the suit proceedings as a legal heirs.
2.2 It is the case of the petitioners in the present petition that after a period of more than 3 years of the death of deceased Khodaji, all of a sudden, respondent no. 8, by filing an application below exhibit 70, claimed herself as sole daughter of deceased Khodaji. Simultaneously, she filed similar application in another suit proceedings being RCS No. 622 of 1992 and prayed that she may be joined as legal heir of deceased Khodaji. In the said proceedings, deceased Khodaji was defendant. The respondent no. 8, initially moved an application after lapse of 3 years from the death of deceased - Khodaji before the learned Trial Court in both the proceedings i.e. RCS No.622 of 1992 and RCS No. 300 of 2005 in the year 2012, claiming herself as a sole legal heir of deceased Khodaji. Thereafter, she withdrew the said applications unconditionally from both the suit proceedings after executing various documents by declaring that she raised such a plea under some misconception and she is not a legal heir of deceased Khodaji. That in the proceedings of RCS No. 622 of 1992, the trial Court was pleased to accept the said application and passed an order thereupon and disposed off the said application. Thereafter, the Ld. Trial Court where proceedings was going on being RCS No. 300/2005 did not pass an order permitting to withdraw the said application, however, the Ld. Court below had recorded the said facts in the Rojkam of the said proceedings. That again in the year 2019, respondent no. 8 filed application seeking identical prayer to join her as legal heir of deceased Khodaji in RCS No. 622 of 1992 suit proceedings. The said respondent No.8 moved that application along with delay condone application below Exh. 241 and 242 respectively before the Ld. Trial Court where RCS No. 622 of 1992 is going on. The Ld. Trial Court where RCS No. 622/1992 is going on, rejected the application of the respondent no. 8 vide order dated 18- 03-2021. Further, again the same respondent moved an application under 0.47 Rule-1 seeking Review of the order dated 18- 03-2021. The Ld. Trial Court was pleased to reject the said review application. Now coming back to the proceedings of RCS No. 300 of 2005, the application which was moved way back in the year 2019 seeking joining party as legal heir, came to be decided by the Ld. Trial Court vide order dated 11.05.2022 which is the subject matter of the present petition and the said order is the impugned order in this petition. Thereafter, the aggrieved respondent filed petition under article 227 of the Constitution of India, challenged the said order rejecting review application. The said Special Civil Application No. 5056 of 2022 is pending before this Hon'ble Court with ad interim relief. The further proceedings of the said RCS No.622/1992 are
A plaintiff who has filed a pursis to unconditionally withdraw a suit has no right to challenge an impugned order related to the suit.
Order XXIII Rule 1 of the Civil Procedure Code gives the plaintiff an absolute right to withdraw the suit, and once the suit is sought to be withdrawn, the petitioner has no right to challenge the im....
The court affirmed that mere interest in property does not grant standing to object in execution proceedings if title has been conclusively determined.
A suit for mandatory injunction can be maintained without a claim for possession when established ownership rights exist, and repeated challenges to previous rulings may constitute an abuse of legal ....
Point of law : Applicants have been able to make out more than a prima facie case for grant of leave to appeal. The applicants could be said to be prima facie prejudicially affected by the consent de....
Withdrawal of a suit post-adjudication at the appellate stage requires strong justification to avoid prejudicing vested rights established by a prior decree.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
