The main legal point established in the judgment is that the plaintiff has an unqualified right to withdraw the suit unconditionally, and the defendant's objection to the withdrawal amounted to a misuse of the legal process.

JUDGMENT :

Rule. Learned Advocate Mr.Viral K Shah, for respondent No.1 waives service of notice. Respondents No.2 and 3 though served have chosen not to appear.

2. Order dated 11/12/2021 passed below Exh.1 in Special Civil Suit No.116 of 2020 by the learned 7th Additional Senior Civil Judge & CJM, Ahmedabad (Rural) is sought to be challenged in the present petition under Article 227 of the Constitution of India whereby the plaintiff has been permitted to withdraw the suit unconditionally.

3. The facts of the case in nutshell are that respondents No.2 and 3 and their family are join owners of NA Land bearing revenue Block/Survey No.1 ad-measuring area of 0-54-63 H.Acre.Sq. Mtrs., and block/survey no.464 ad-measuring area about 0-02-34 H-Are – Sq. Mtrs., situated at Village Ambli, Tal. Ghatlodiya, Sub-District/District : Ahmedabad. Respondents No.2 and 3 appointed the petitioner as their power of attorney holder by giving all the power in respect of the suit land and other lands and while doing so petitioner credited Rs.10,00,000/- each in the account of respondent Nos.2 and 3. It is the case of the petitioner that after execution of the said power of attorney, petitioner executed an agreement to sell dated 18/12/2019 of the suit land in favour of respondent no.1 in the total sale consideration of Rs.1,00,00,000/-. Respondent no.1 preferred Special Civil Suit No.117 of 2020 for specific performance of the agreement to sale dated 18/12/2019 alongwith permanent injunction over the suit land before the Court of learned Principal Senior Civil Judge, Ahmedabad. The petitioner filed written statement in the said suit and sought rejection of the suit by raising various grounds therein.

3.1 However, thereafter on 10/12/2021, respondent no.1 has filed pursis vide Exh.26 in the said suit for withdrawal of the said suit unconditionally wherein respondents no.2 and 3 have made their consent endorsement for allowing the said pursis and ultimately by the impugned order, the learned Court has granted permission to the plaintiff to withdraw the suit unconditionally. The said order has been challenged by filing present petition.

4. Learned Advocate for the petitioner Mr.Digant B Kakkad submits that petitioner is the defendant No.3 in the suit. He is power of attorney holder of defendant nos.1 and 2 and in his absence the plaintiff has withdrawn the suit unconditionally. He would submit that defendant no.3 was intended to transpose as plaintiff in the suit; but before he avail his right, learned Court below hurriedly allowed the plaintiff to withdraw the suit. Referring to O.23 R.1(A) of the CPC, he would submit that the person who is arraigned as defendant has right to apply to be transposed as a plaintiff under O.1 R.10 and the Court is required to consider such application having due regard to the question whether the applicant has substantial question to be decided as against any of the other defendants. He would further submit that in a case where plaintiff is seeking withdrawal or abandon of the suit, the concerned defendant is require to be heard as he would wishing to transpose as a plaintiff. He would further submit that since the defendant no.3 was not heard by the learned Court below while permitting the plaintiff to withdraw the suit unconditionally, a serious error has been committed by the learned Court below which has prejudiced the substantial right of the defendant no.3. Upon such submission, learned Advocate would submit that the present petition may be allowed.

5. On the other hand, learned Advocate for the respondent would submit that petitioner-defendant no.3 was the power of attorney holder of the defendant no.1 and 2 who has no independent locus to be appeared in the matter. He would submit that he is just an agent of the master in view of the Contract Act. He would further submit that defendant nos.1 and 2 who are master have slated no objection and also passed the endorsement on the said application indicating no objection for