Decided on January 31,1974



- (1.) After hearing the Original Petition, we dictated judgment in open court on the 19th December, 1973. The operative portion of the judgment then dictated reads as follows: - "To sum up, we decline the prayer embodied in prayer No. 3 in the petition. We declare that the alleged appointment of the petitioner on the 1st of March, 1972 we guard ourselves by saying alleged appointment because some doubt was raised about the fact of appointment was an appointment to a post recognised by the Ordinances that were applicable at that time and further that in regard to that appointment no approval of the University was necessary. But we decline to grant any further relief to the petitioner."
(2.) On the 22nd of December, 1973, within three days of the delivery of the judgment by dictation to the Shorthand Writer, the petitioner has moved C M.P. No. 15852 of 1973 to withdraw the prayer No. 3 from the Original Petition. The question is whether this prayer can be granted. This petition was opposed by the Advocate General on behalf of the State. He contended that a judgment can be pronounced by dictation to the Shorthand Writer, that the judgment has been pronounced on the 19th of December, 1973, that such pronouncement is delivery of the judgment, that by such delivery the judgment has become final and that thereafter no alterations or additions or deletions should be made to the judgment excepting such changes that can be made by virtue of the provision in S.152 of the Code of Civil Procedure or by the application of the provision for review in O.47 of the Code of Civil Procedure. On the other hand, counsel for the petitioner contended that even going by the specific rules in O.20 of the Code of Civil Procedure relating to judgments', till the judgment has been finalised, after it is transcribed by the Shorthand Writer, corrected by the Judges that pronounced it and signed by them, the judgment does not become final and alterations can be made in the judgment. He particularly emphasised that all that this Court said at the time of the pronouncement of the judgment was that relief No. 3 claimed by the petitioner could not be granted in proceedings under Art.226 of the Constitution and that whether such a prayer could be granted will depend upon the questions of fact; the nature of the agreement with the Government by the private educational institutions and other like matters which have to be determined in proceedings other than that under Art.226 of the Constitution. By virtue of that, it is said, no rights accrued in favour of any one. He contended that the right to withdraw from a suit is an unfettered right that neither the Code of Civil Procedure nor any principle of law has limited this right and that any ban on the exercise of the right to withdraw unconditionally can arise only when a judgment had become final and a decree had been passed. The right to withdraw is a right of the plaintiff and no permission of the Court even is necessary though when a suit is withdrawn no fresh suit can be brought on the same cause of action (R.1(3) of O.23).
(3.) Before dealing with the question whether the prayer for withdrawal can be granted after the judgment was dictated in open court, we would advert to the point whether the provisions in the Code of Civil Procedure as such would apply to proceedings under Art.226 of the Constitution.;

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