IN THE SUPREME COURT OF INDIA CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL NO. 5527  OF 2008 (Arising out of S.L.P. (C) No.8709/2004)

     Sadhna Jain & Anr.      ...Appellants

Versus

     Sheikh Khalikuzzama(d) By   ...Respondents               Lrs. & Ors.                     

O  R  D  E  R

Although, notices had not been served upon respondent Nos. 7

to 10 and 20 & 21, it is stated by Mr. K.V. Viswanathan, learned counsel appearing

for the petitioners that the plaintiffs having been served with the notice and they are

appearing, it is not necessary for the disposal of the appeal to serve respondent Nos. 7

to 10 and 20 & 21.

In  view  of  the  statement  made  by  Mr.  K.V.  Viswanathan,

service of notice upon the unserved respondents is waived.

Leave granted.

This appeal is directed against the judgment and order dated

4.3.2004 passed by a Division Bench of the High Court of judicature at Allahabad in

First Appeal NO. 356 of 2004 whereby and whereunder leave to withdraw the suit

filed  by  the  plaintiff-respondents  herein  has  been  granted,  upon  setting  aside  the

decree passed by the learned trial Judge in Suit No. 177 of 1995.  

The  plaintiff-respondents  filed  the  aforementioned  Suit  for

injunction and declaration before the Civil Judge, Mirzapur.

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In  the  year  1999  the  appellants  herein  were  impleaded  as

parties. Both parties adduced evidence. When the Suit was fixed for argument, an

application  seeking  permission  to  withdraw  the  suit  and  file  a  fresh  suit,  on  the

ground  that  the  appellants  have  purchased  the  property  and  therefore  different

reliefs have to be claimed in a fresh suit, was filed. The said application was dismissed

by an order dated 30.9.2003,  observing:

"..But the Plaintiffs have not moved this application only with the  motive  to  harass  the  defendants.  His  application  is  moved  at  the  stage  of Judgment.  For the submissions  and facts argued by the defendants  I  Perused the order sheet Plaint and find that the present suit was filed by Plaintiffs in the year 1995 for  permanent  injunction and during  pendency  of  the suit  in  the  year  1999 Plaintiffs  arrayed alleged purchasers and parties and plaintiffs have continued the said  suit  on  same  facts,  if  according  to  plaintiffs  due  to  alleged  transfer  the circumstances of the suit was changed then the steps for withdrawal of suit should have  been  taken  at  that  time,  but  Plaintiffs  adduced  their  evidence  and  forced defendants to adduce their evidence and suit was fixed for a final arguments for final disposal of the suit."

 Thereafter,  on  or  about  7.10.2003,  another  application  was  filed  for

withdrawal  of  the  Suit.  The  said  application  was  also  dismissed.  The  plaintiff-

respondents filed a Civil Revision No. 786/2003 thereagainst  before the Allahabad

High Court. It is stated at the Bar that the said revision application is still pending.

  On or about 6.12.2003, the learned Trial Judge dismissed the suit. A First

Appeal was preferred thereagainst.   

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The said appeal  has been allowed by reason of the impugned judgment

stating:

" The position would be different where the suit has already been decreed and  the  prayer  for  withdrawal  of  the  suit  is  made  in  a  pending  appeal,  when  a judgment  is  delivered  certain  rights  and  liabilities  accrue,  and  hence  there  is  no unconditional right in the plaintiff to withdraw the suit  before the appellate court. It is the discretion of the appellate court to allow or not to allow withdrawal of the suit, though of course in view of Order 23 Rule 1(4) C.P.C. the trial Court can impose costs on the plaintiff and the plaintiff is precluded from instituting any fresh suit in respect of the subject matter. However, once an application for unconditional withdrawal of the suit is filed, the Court has no right thereafter to proceed and pronounce judgment

on the merit of the case.

For  the  reasons  stated  above,  this  appeal  is  allowed.  The impugned judgment dated 9.12.2003 is set aside and the suit is dismissed with costs."

Mr.K.V.Viswanathan,  learned counsel  appearing  on behalf  of

the appellants would submit that the High Court has committed a serious error in

passing the impugned judgment as it has failed to take into consideration the fact that

the prayer for withdrawal of the Suit had been dismissed by the learned trial Judge

for the second time by the aforementioned order dated 7.10.2003 and in view of the

fact that the civil revision application theragainst has been filed, the High Court could

not have passed the impugned order.

Although,  the  High  Court  apparently  appears  to  have  made

inconsistent orders insofar as on the one hand it has allowed the appeal and on the

other hand dismissed the suit but upon a fair reading of the entire order, we are of the

opinion  that  by  reason  thereof,  the  High  Court  merely  permitted  the  plaintiff-

respondents  to  withdraw  the  suit  with  liberty  to  file  a  fresh  suit  subject  to  the

conditions mentioned therein.

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The  judgment  of  the  High  Court,  in  our  opinion,  cannot

be sustained for more than one reason; firstly, no application was filed for

withdrawal  of  the  suit  and  secondly  the  plaintiff-respondents  might  have  merely

brought  to its notice that it  had filed such an application before the learned trial

Judge but it appears from the impugned judgment that the attention  of the High

Court was not drawn to the fact that the application has already been dismissed and

civil revision thereagainst has been filed.

In  that  view  of  the  matter,  the  High  Court  could  not  have

permitted the appellants to withdraw the suit with liberty granted to file a fresh suit

until and unless a prayer therefor was made.

For  the  reasons  aforementioned,  we  set  aside  the  impugned

judgment and remit the matter back to the High Court for consideration of the same

afresh.

The appeal is allowed. No costs.

......................J.       [S.B. SINHA]

.....................J                                       [ CYRIAC JOSEPH ]

New Delhi, September 1, 2008.

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