The right to withdraw a suit is unqualified if no right has been vested in any other party, and the withdrawal of the suit is the plaintiff's prerogative.

1. Heard Sri Shiv Nath Singh, learned counsel for the applicants. Sri Sharad Malviya and Sri Arvind Srivastava, Advocates are present for respondents.

2. The applicant is the plaintiff-appellant and had instituted second appeal under Section 100 C.P.C. assailing judgment dated 10.01.1983 passed by Vth Additional District Judge, Kanpur whereby Lower Appellate Court while allowing defendants' appeal set aside the Trial Court's judgment and decree dated 18.09.1980, whereby plaintiff-appellant's suit was decreed.

3. The Original Suit No. 1861 of 1970 was instituted seeking ejectment of defendants-respondents from House No. 59/86 of which plaintiff-appellant claimed to be landlady and owner and defendants-respondents, the tenants. The plaintiff had also claimed arrears of rent and mesne profits etc. The suit was decreed by Trial Court in respect to relief No. A, B, C and D with cost vide judgment dated 18.09.1980. The judgment and decree of Trial Court was reversed by Lower Appellate Court vide judgment dated 10.01.1983.

4. The second appeal was entertained by this Court on 05.09.1983 on the following substantial questions of law:

(a) Whether the view of Lower Appellate Court that suit was not travel as a regular suit by Munsif Court but was travel as a small cause suit by Small Cause Court is erroneous in law?

(b) Whether the view of Lower Appellate Court that quit notice is invalid is erroneous in law?

(c) Whether the finding that relationship of landlord and tenant did not exist between parties is vitiated in law?

5. While this appeal was pending the plaintiff-appellant through her Advocate, Sri Shyam Narain moved withdrawal application dated 24.05.2010 requesting the Court to permit appellant to withdraw second appeal with liberty to file writ petition. The defendants-respondents though had no objection to plaintiff-appellant in abandoning her appeal but objected the prayer regarding liberty to file writ petition. Both sides were heard by Court and vide order dated 24.05.2010 the application was allowed and appeal was dismissed as withdrawn but liberty to file fresh writ petition was rejected. The Court has given its detailed reasons therefor and relevant extract of Court's observations, is reproduced as under:

"I have heard learned counsel for the parties and perused the record.

The application for withdrawal of the second appeal is allowed. As far as granting liberty to file a fresh writ petition the Court declines to grant this relief. It is noteworthy that the suit for ejectment was filed in the year 1970. The litigation has remain pending in the trial court, first appellate court for several year. The second appeal was filed in the year 1983. The case has remain pending in this High Court for a long time of 27 years. The appellant has enjoyed the benefits of litigation. It was open for the open for the appellant to have sought proper advice or he could have been advised accordingly at the initial stages.

Under the facts and circumstances of the case and the nature of the dispute which has come up for adjudication the ratio of the above Full Bench judgment is not applicable. The provisions contained in Order 23, Rule 1 of C.P.C. are clear in this regard. In view of the above, the second appeal is dismissed as withdrawn. Interim order, if any, is discharged. All the necessary consequences shall follow immediately."

6. Now this application has been filed by plaintiff-appellant changing her counsel and it is now through Sri Shiv Nath Singh and Sri Satyam Singh, Advocates, whose Vakalatnama is also appended with this application.

7. The order dated 24.05.2010 is sought to be recalled on the ground that erstwhile counsel misconstrued Section 102 C.P.C. as the same was not applicable in appeal in question. It has been stated in para 2 of affidavit that withdrawal application though signed by son of applicant but the applicant and her daughter who are also party in appeal were not taken into confidence and they had never gi