RSA No.1629 of 1981 (O&M)

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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH

CM No.12021-C of 2004 and

RSA No.1629 of 1981

Date of Decision: 23.3.2010

Bhuja Ram (died) through LRs and others

...Appellants

Versus

Tek Chand and others

.....Respondents

1. Whether Reporter of local papers may be allowed to see the

judgment- Yes.

2.To be referred to the Reporters or not- Yes.

3. Whether judgment should be reported in the digest-Yes.

4.

Coram: Hon'ble Mr. Justice Alok Singh

Present:

Mr. R.S. Mittal, Sr. Advocate with

Mr. Atul Gaur, Advocate

for the Appellant.

Mr. S.K. Garg Narwana, Advocate

for the respondent.

Mr. Alok Singh, J. (Oral)

1.

This application is moved under Section 151 CPC to

withdraw/oral statement dated 15.10.2010 of the learned counsel for

the appellant and for recalling the order, which was recorded by this

Court in the order dated 15.10.2003. Order dated 15.10.2003 reads

as under:-

“Counsel for the appellants states that he is

pressing this appeal qua respondents No.1 to

4, 8 to 13, 17 and 20 only. He gives up all the

other respondents as unnecessary. The appeal

is, accordingly, dismissed qua the other

RSA No.1629 of 1981 (O&M)

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respondents.”

2.

Learned Sr. Advocate Mr. R.S. Mittal assisted by Mr. Atul

Gaur, Advocate argued that statement dated 15.10.2003 was given by

him keeping in mind expedite hearing of the appeal. Mr. Mittal further

stated that despite of dismissal of appeal by this Court vide order

dated 15.10.2003 qua the other respondents as mentioned in the

order, other respondents were represented before this Court by their

Advocates. Mr. Mittal further stated that those other respondents were

party in the SLP before the Apex Court challenging the judgment of

this Court allowing the appeal vide order dated 25.2.2004. According

to Mr. Mittal after remand from the Apex Court he should be permitted

to withdraw his statement dated 15.10.2003 and appeal be heard on

merit against all the respondents. He further stated that decree

pursuant to judgment dated 25.2.2004 also mentions name of the

respondents.

3.

Mr. Mittal has placed reliance on the order dated 23.9.2004

passed by learned Single Judge of this Court in the matter of Dharam

Singh Vs. Shrabati and another, in RSA No.2084 of 1980 in support of

his argument and stated that an application to withdraw the suit or

appeal can be withdrawn at the subsequent stage.

4.

Mr. Mittal further placed reliance on the judgment in the

matter of Rameshwar Sarkar Vs. State of West Bengal reported in AIR

1986 Calcultta 19. Calcutta High Court in Rameshwar Sarkar (supra)

in para No.14 has held as under:-

"The scope of S.151 is very vide. Where there

is no provision under the Code of Civil

Procedure prescribing any remedy, S.151 will

apply. O.23, R.1 provides withdrawal of a suit

with or without liberty to file a fresh suit. There

RSA No.1629 of 1981 (O&M)

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is no provision for getting an order passed on

withdrawal application set aside or praying for

withdrawal of an application for withdrawal of

the suit. In such circumstances in our opinion,

the Court is not powerless to allow withdrawal

of an application for withdrawal of a suit in

excerise of its inherit power in a proper and

suitable case."

5.

Mr. Mittal further placed reliance on judgment of Patna High

Court in the case of Jagarnath Kayal Vs Nagar Mull reported in AIR

1962 Patna page at 426 and argued that withdarwal application can be

withdrawn at the subsequent stage.

6.

Mr. S. K. Garg Narwana, learned counsel for the respondents

vehemently opposed the application and argued that statement given

at Bar by learned Sr. Advocate cannot be withdrawn.

7.

I find that appeal was not pressed by Mr. R.S. Mittal, Sr.

Advocate assisted by Mr. Atul Gaur qua other respondents except

Respondents No.1 to 4, 8 to 13, 17 and 20 only. Appeal was directed

to be dismissed against respondents No.6, 7, 14, 15, 16, 18, 19 and

21 to 50.

8.

On being