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2025 Supreme(Guj) 2141
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MAULIK J.SHELAT, J.
Kantilal Nagjibhai Zalavadiya And Ors. – Petitioners
Versus
Prakashbhai Chhaganbhai Patel And Ors. – Respondents
R/Special Civil Application No. 15491 Of 2020
Decided On : 24-04-2025
For The Petitioner: Mr Anuj K Trivedi
For The Respondent: Hiren R Pandya, Mr Rajendra Patel, Mr Rutvij R Patel
Where co-plaintiffs have divested their legal interest in the subject matter of litigation through transfer, they lack the standing to object to the withdrawal of the suit by other co-plaintiffs, as procedural rules requiring consent must be applied to advance, not obstruct, substantial justice.
Headnote:(A) Code of Civil Procedure, 1908 - Order 23 Rule 1(5) - Withdrawal of suit - Requirement of consent of co-plaintiffs - Where co-plaintiffs have assigned or transferred their entire interest in the suit property to other co-plaintiffs, the objecting co-plaintiffs lose the legal standing to obstruct the withdrawal of the suit. Procedural rules are handmaids of justice and should not be construed as a tyrant to compel the continuation of litigation against the will of those who possess the actual interest. (Paras 13, 14, 21, 24)
(B) Appellate Jurisdiction - Scope of interference - Constitutional powers - Where the trial court mechanistically applies procedural provisions ignoring the substantive status of the parties and the lack of prejudice caused by the withdrawal, the appellate court is empowered to interfere to prevent a miscarriage of justice. (Paras 17, 27)
Facts of the case:
Multiple plaintiffs filed a suit seeking a declaration and injunction regarding the property in dispute. During the pendency of the suit, certain plaintiffs sought to withdraw the action, contending that they are the sole owners of the property following the execution of registered sale deeds by the original owners. The remaining plaintiffs, who had previously transferred their interests, objected to this withdrawal. The trial court rejected the withdrawal request based on the requirement of consent from all co-plaintiffs under the procedural code. The matter was subsequently challenged by the plaintiffs seeking withdrawal.
Findings of Court:
The Court observed that the objecting plaintiffs had divested themselves of any substantive interest in the subject matter of the dispute by virtue of prior transfers. The court held that such parties have no standing to obstruct the proceeding since they no longer possess a valid stake in the litigation. It was determined that the trial court erred in adopting a hyper-technical approach and that the withdrawal should not be hindered when no prejudice is caused to the objecting parties.
Issues: The primary issue was whether the requirement of consent under the procedural code for the withdrawal of a suit by one of the co-plaintiffs remains mandatory when the objecting co-plaintiffs have already transferred their entire interest in the suit property.
Ratio Decidendi: The Court held that procedural provisions are intended to facilitate justice, not to act as tools for obstruction. Since the objecting parties no longer held any legal interest in the property, their consent was not essential for the withdrawal of the suit. The court emphasized that procedural rules must be interpreted to reflect the underlying reality of the parties' interests and should not be used to create an obstacle to the resolution of disputes where no genuine legal conflict remains.
Result: The petition was allowed and the order of the trial court rejecting the withdrawal was set aside.
| Table of Content |
|---|
| 1. procedural context and factual background regarding suit withdrawal (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. parties' contentions on order 23 rule 1(5) cpc applicability (Para 7 , 8 , 9 , 10) |
JUDGMENT :
MAULIK J.SHELAT, J.
1. Rule returnable forthwith. Learned advocate Mr. Rajendra Patel waives service of notice of rule on behalf of respondent No.1 and learned advocate Mr. Hiren R. Pandya waives service of notice of rule on behalf of the contesting respondent No. 20.
2. Though served, none appeared on behalf of other respondents. The presence of other respondents are not required.
3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :
“(a) Your Lordships may be pleased to issue a writ of certiorari and/ or any other appropriate writ order or direction in the nature of certiorari, quashing and setting aside the impugned order dated 21.12.2019 Exh. 113 in Special Civil Suit no. 80 of 2010 passed by the learned 15th Additional Senior Civil Judge, Surat and be pleased to permit / allow the said pursis Exh-113;
(b) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the implementation, execution and operation of the impugned order dated 21.12.2019 below Exh. 113 in Special Civil Suit no: 80 of 2010 passed by the learned 15th Additional Senior Civil Judge, Surat;
(c) Such other and further relief as may deem fit and proper in the interest of justice may be granted in favour of the petitioner.”
4. Heard learned advocate Mr. Anuj K. Trivedi for the petitioners, learned advocate Mr. Rajendra Patel for respondent No.1 and learned advocate Mr. Amit B. Thakkar with learned advocate Mr. Hiren Pandya for respondent No.20.
5. The parties will be referred as far as possible as per their original position in the suit.
Short Fact of the case.
6. The petitioners herein are original plaintiff Nos. 3 to 5 who along with respondents No. 1 & 2 and respondent No.3 (deleted) have instituted Special Civil Suit No. 80 of 2010 (herein after referred as “suit in question”) against the rest of the respondents pending before the Principal Senior Civil Judge, Surat seeking declaration and injunction. The respondents No. 1 to 3 are original plaintiffs No. 1, 2 and 6 respectively, whereas respondent No. 20 is original defendant no.17.
6.1 It is a specific case of the plaintiffs that plaintiff No.1- respondent No.1 herein has executed registered sale-deed of suit land in question in favour of plaintiffs No. 3 to 6 i.e. Petitioners and respondent No.3 (deleted) respectively on 21.12.2006. So, they have put in actual and physical possession and become owner of the suit land.
6.2 The plaintiffs have prayed in the suit that registered sale deed executed in favour of the original defendants No. 1 to 15 on 03.06.2000 (new number given on 18.11.2004) is not binding to plaintiffs and no right would accrued in favour of defendants No. 1 to 15 on the strength of aforesaid sale-deed which is to be declared null and void.
6.3 It has been further prayed that a registered sale-deed executed by defendants No. 1 to 15 in favour of defendant No.17 on 04.02.2006 is not binding to the plaintiffs and no right accrued in favour of defendant No.17 which is also declared to be null and void. There are other prayers also made in relation to the other transactions entered between the other defendants in relation to suit property.
6.4 It appears that during the pendency of the aforesaid suit, plaintiff No. 6 has filed withdrawal pursis below Exh. 61 on 09.05.2012 thereby, he declared to withdraw the suit, which was recorded by the trial Court. It appears that no other plaintiffs have objected such withdrawal.
6.5 It appears that defendant No. 17 had filed Special Civil Suit No. 61 of 2007 against the original plaintiffs as well as rest of the defendants of suit in question, wherein he has sought declaration and injunction and questioned the sale- deed executed by plaintiffs No. 1
