- (1.) THE petitioners are plaintiffs in a Suit for permanent injunction where also a prayer has been made for restraining the defendant from alienating the property in dispute. Original Suit No.11 of 2010 was instituted on 5.1.2010 and an ad-interim injunction was also granted to the petitioners ­ plaintiffs on 6.1.2010.
(2.) TWO months thereafter an application was filed bearing No.30-A on 6.3.2010 praying for an unconditional withdrawal of the Suit. This application was filed by all the plaintiffs. It appears that there was some change of heart and on 2011, an endorsement was made by the learned counsel for the plaintiffs on the said application that they do not want to press the said application. This endorsement was pursuant to an application already filed by the plaintiffs to the said effect on 15.3.2010 numbered as Paper No.33 - C (2). It was categorically stated in the said application that the plaintiffs do not propose to press their earlier application for withdrawal dated 6.3.2010. 3. It appears that no orders were passed on either of these two applications and the court proceeded with the case by framing issues on 4.2010 where after dates were fixed for evidence on 25.2010 and even thereafter till 3.2011. The Court then proceeded to fix dates for disposal of application No.30-A and the trial court on 12012 set aside the endorsement of "not pressed" by the petitioners ­ plaintiffs and in effect rejected application No. 33 ­ C (2), and allowed application No. 30-A permitting withdrawal of the Suit. The Trial Court, while passing the order, relied on two judgments of this Court namely AIR 1966 Allahabad 318, Smt. Raisa Sultana Begam and others Vs. Abdul Qadir and others and a Division Bench judgment in the case of Sheikh Khalikuzzama and others Vs. Sheikh Akhtaruzzama and others, 2004 (55) ALR 36 The trial court found that once the plaintiffs have abandoned their claim, they cannot be permitted to file any application for withdrawing the application of abandonment.
(3.) AGGRIEVED the plaintiffs filed a Revision which has also been dismissed after noticing the judgment in the case of The Executive Officer, Arthanareswarar Temple Vs. R. Sathyamoorthy and others, AIR 1999 SC 958 and the judgment of the Apex Court in the case of Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others, (2011) 2 SCC 705. The revisional court endorsed the view taken by the trial court by following the decision of Smt. Raisa Sultana Begam (supra) and accordingly rejected the revision. Learned counsel for the petitioners contends that the aforesaid decisions have been rendered ignoring the provisions of Section 151 C.P.C. which have been found to be applicable and for which reliance is placed by the learned counsel for the petitioners on the decision of Rajendra Prasad Gupta (supra) to contend that the judgment clearly holds that an application praying for withdrawal of the application to abandon the Suit was maintainable. Sri Tripathi, therefore, submits that inspite of having noticed the said judgment, the revisional court has taken an erroneous view and, therefore, the impugned orders deserve to be set aside. Learned counsel has further relied on the decision in the case of Jet Ply Wood (P) Ltd. and another Vs. Madhukar Nowlakha and others, (2006) 3 SCC 699, which has relied on the judgment of Calcutta High Court in the case of Rameshwar Sarkar Vs. State of West Bengal and others, AIR 1986 Calcutta 19, to substantiate his submission that there is no specific provision for moving such an application under the Civil Procedure Code and, therefore, the application can be moved under Section 151 C.P.C. and entertained.;