RAISA SULTANA BEGAM Vs. ABDUL QADIR
LAWS(ALL)-1965-9-7
HIGH COURT OF ALLAHABAD
Decided on September 20,1965

RAISA SULTANA BEGAM Appellant
VERSUS
ABDUL QADIR Respondents


Referred Judgements :-

MUKKAMMAL V. KALIMUTHU PILLAY [REFERRED TO]
RAJAH SHAMSHER BAHADOOR V. MAHOMED ALI BEG [REFERRED TO]
ALLAH BAKSH V NIAMAT ALI [REFERRED TO]
MAHANT BIHARIDASJI V PARSHOTTAM DAS [REFERRED TO]
GULKANDI LAL V. MANNI LAL [REFERRED TO]
RAM BHAROS LALL V GOPEE BEEBEE [REFERRED TO]
IN RE SKINNER AND EDDY CORPORATION [REFERRED TO]
LAKSHMANAN CHETTY V. MUTHAYA CHETTY [REFERRED TO]
LAKSHMANA PILLAI V. APPAL WAR ALWAR AYYANGAR [REFERRED TO]
MOHAMAD ALI V. SHUJAT ALI [REFERRED TO]
RAJ KUMARI DEVI V. NIRTYA KALI DEBI [REFERRED TO]
MASULIPATAM MUNICIPALITY VS. RALLABHANDI VENKATAPPAYYA [REFERRED TO]
THADI KONDA VEERASWAMI VS. THULLUM PEDA LAKSHMUDU [REFERRED TO]
YESHWANT GOVARDHAN VS. TOTARAM AVASU [REFERRED TO]
ATTILI RAJAGOPALA RAO VS. SRI AVBHANOJI RAO [REFERRED TO]
MIDNAPORE ZEMINDARY CO LTD VS. RAJA BIJOY SINGH DUDHURIA [REFERRED TO]
HASAN BADSHA, MINOR BY HIS FATHER AND NEXT FRIEND K MAHOMED GHOUSE SAHEB VS. SULTAN RAZIAH BEGUM, MINOR BY HER FATHER AND GUARDIAN-AB- LITEM, FATHAUDDIN SAHEB [REFERRED TO]



Cited Judgements :-

BHARAT BHUSHAN GUPTA VS. RAJ KUMAR GUPTA [LAWS(DLH)-1993-5-12] [REFERRED]
PAAM PHARMACEUTICAL DELHI LIMITED VS. UNION OF INDIA [LAWS(DLH)-2000-8-14] [REFERRED]
NILA BAUART ENGINEERING LIMITED VS. RAJASTHAN URBAN INFRASTRUCTUREPROJECT AVS BUILDING [LAWS(GJH)-2003-12-11] [REFERRED TO]
BHARAT VS. RAM PRATAP [LAWS(ALL)-1984-2-22] [REFERRED TO]
BHARAT VS. RAM PRATAP [LAWS(ALL)-1984-5-41] [REFERRED TO]
UPENDRA KUMAR VS. DISTRICT JUDGE AZAMGARH [LAWS(ALL)-1997-3-6] [REFERRED TO]
STATE BANK OF INDIA DEORIA VS. FIRM JAMUNA PRASAD JAISWAL AND SONS AND ANOTHER [LAWS(ALL)-2003-4-154] [REFERRED TO]
PRAKASH CHANDRA MISHRA VS. RAJENDRA PRASAD GUPTA [LAWS(ALL)-2004-2-2] [REFERRED TO]
SHEIKH KHALIKUZZAMA VS. SHEIKH AKHTARUZZAMA [LAWS(ALL)-2004-3-259] [REFERRED TO]
ASSAM KHATUN VS. MAHMAD ALI [LAWS(GAU)-2004-3-29] [REFERRED TO]
RAM PALAT CHATURVEDI VS. CHANDRA BALI SHASTRI [LAWS(ALL)-2007-7-136] [REFERRED TO]
ABDUL MALIK VS. A D J KANNAUJ [LAWS(ALL)-2010-8-93] [REFERRED TO]
PREMA CHANDA VS. PRAFULLA KUMAR [LAWS(ORI)-1987-4-11] [REFERRED TO]
DURGA PRASAD VS. LAXMINARAYAN RAM GOPAL [LAWS(MPH)-2007-9-28] [REFERRED TO]
BALWANT SINGH VS. INDRAPRASTHA BUILDERS PRIVATE LIMITED [LAWS(DLH)-1995-9-14] [REFERRED]
PRATAPBHAI V TRIVEDI VS. PRIYAMVADA alias GHAMU PRATAPBHAI TRIVEDI [LAWS(GJH)-1992-7-25] [REFERRED TO]
SURAJ PAL SINGH VS. GHARAM SINGH [LAWS(ALL)-1972-11-6] [REFERRED TO]
VIJAY MALIK VS. STATE OF U P [LAWS(ALL)-2007-12-61] [REFERRED TO]
RAJESH VS. STATE OF U P [LAWS(ALL)-2009-4-219] [REFERRED TO]
RAMESWAR SARKAR VS. STATE [LAWS(CAL)-1985-8-7] [REFERRED TO]
SADHULAL SHRIKISHAN VS. SHRI RADHESHYAM BANSAL [LAWS(CHH)-2011-11-6] [REFERRED TO]
DEVASSI VS. ANTHONI [LAWS(KER)-1968-2-22] [REFERRED TO]
MARIYAMMA VS. KOCHOUSEPH [LAWS(KER)-1990-6-53] [REFERRED TO]
MARIYAMMA VS. KOCHOUSEPH [LAWS(KER)-1990-10-33] [REFERRED TO]
INDUSTRIAL FINANCE CORPORATION OF INDIA LTD VS. DAS LAGERWEY WIND TURBINES LTD [LAWS(MAD)-2008-9-91] [REFERRED TO]
MANPHOOL VS. SURJA RAM [LAWS(P&H)-1977-10-8] [REFERRED TO]
BHAJAN LAL VS. RAJMALA [LAWS(ALL)-2012-11-36] [REFERRED TO]
BHAJAN LAL VS. RAJMALA [LAWS(ALL)-2012-12-133] [REFERRED TO]
KANTESHWARI TIWARI VS. BADRI PRASAD [LAWS(ALL)-2013-2-166] [REFERRED TO]
GANGA SAHAI SHARMA VS. STATE OF RAJ. [LAWS(RAJ)-2013-2-179] [REFERRED TO]
TABASSUM GHAZALA VS. RAVI BALA GARG [LAWS(ALL)-2014-5-366] [REFERRED TO]
SHRI TEJA SINGH, ETC. VS. GURDIAL SINGH, ETC. [LAWS(P&H)-1970-9-38] [REFERRED TO]
KSHETRIYA SRI GANDHI ASHRAM, THROUGH ITS SECRETARY SHRI NATHUNI PANDEY AND ANR. VS. ADDITIONAL DISTRICT JUDGE, SITAPUR AND ORS. [LAWS(ALL)-2010-1-296] [REFERRED TO]
RAMAN GUPTA AND ORS. VS. ANIL KUMAR GOEL [LAWS(ALL)-2016-3-48] [REFERRED TO]
HARDIAL SINGH AND ANR. VS. DAULAT RAM AND ORS. [LAWS(P&H)-1980-9-55] [REFERRED TO]
SATGURU SARAN VERMA VS. DISTRICT JUDGE BARABANKI AND OTHERS [LAWS(ALL)-2016-5-53] [REFERRED TO]
VOL : 1; SUNNI CENTRAL BOARD OF WAQFS AND ORS VS. GOPAL SINGH VISHARAD AND ORS [LAWS(ALL)-2010-9-626] [REFERRED]
MARIYAMMA VS. KOCHOUSEPH [LAWS(KER)-1992-6-85] [REFERRED TO]
VIJAY KUMAR JAIN VS. MPMKVV CO. LTD. AND OTHERS [LAWS(MPH)-2018-1-378] [REFERRED TO]
SMT. RINA DWIVEDI VS. AWADHESH KUMAR [LAWS(ALL)-2017-5-442] [REFERRED TO]
MEERA RAI VS. ADDITIONAL SESSIONS JUDGE AND OTHERS [LAWS(ALL)-2017-11-239] [REFERRED TO]
MOHAN LAL VS. NAIN SINGH [LAWS(ALL)-2018-11-220] [REFERRED TO]
BALDEV SINGH VS. RAM CHANDER [LAWS(DLH)-2020-5-26] [REFERRED TO]
NEELESH AGARWAL VS. ISHAAN BUILDTECH AND ORS. [LAWS(ALL)-2020-6-195] [REFERRED TO]


JUDGEMENT

Desai, C.J. - (1.)THIS revision is directed against an order passed by a Munsif rejecting an application of Ghufran Ahmad, applicant No. 3 revoking his withdrawal from the suit.
(2.)THE suit was filed in the Court of the learned Munsif by the three applicants; on 5-2-1962 one of them, namely Ghufran Ahmad, made an application stating that he had no dispute left with the defendants opposite parties and praying that his name might be expunged from the array of plaintiffs because he was left with no interest in the subject-matter of the suit. At the time when the application was made, the learned Munsif was away and the application was placed before another Munsif, who ordered it to be laid before the learned Munsif on his return. THE application was placed before the learned Munsif on his return and before any orders could be passed on it Ghufran Ahmad filed an affidavit stating that the application had been made by him on account of fraud practised upon him by the opposite parties and that he did not want to withdraw from the suit. THE learned Munsif allowed his earlier application holding that once he had withdrawn from the suit he could not resile from the withdrawal and that even if he had withdrawn on account of fraud practised upon him his remedy was by means of another suit. All the three plaintiffs applied for revision of this order of the learned Munsif and the revision came before our brother D. S. Mathur, who on account of conflict among authorities referred the following question to a larger Bench:-- "Can the plaintiff who has already moved an application under Sub-rule (1) of Order XXIII, Rule 1, C. P. C. withdraw the application for the withdrawal of the suit before orders are passed on the withdrawal application, i.e., the suit is, as far as the plaintiff is concerned, struck off from the file?"
Order XXIII, Rules 1 and 2 lay down all the laws regarding withdrawal of suits. Rule 1 reads as follows:- - "1. (1).....the plaintiff may.....withdraw his suit..... (2) Where the Court is satisfied- (a)..... (b)..... it may,.....grant the plaintiff permission to withdraw from such suit.....with liberty to institute a fresh suit in respect of the subject-matter of such suit..... (3) Where the plaintiff withdraws from a suit.....without the permission referred to in Sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting a fresh suit in respect of such subject-matter.... (4) Nothing in this Rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others." Rule 2 deals with the period of limitation for a fresh suit instituted on permission granted under Rule 1(2).

There is no distinction between withdrawing a suit and withdrawing from a suit When there is only one plaintiff and he with iraws the whole suit it can be said that he withdraws the suit; when there are more than one plaintiff and one of them withdraws it may be better to say that he withdraws from the suit. "At common law a plaintiff has an absolute right to discontinue or dismiss his suit at any stage of the proceedings prior to verdict or judgment, and this right has been declared to be substantial"; (per C. J. Taft in the matter of Skinner and Eddy Corporation, (1924) 68 Law Ed 912 at p. 914).

(3.)IT is this right that has been given statutory recognition through Rule 1 (1). The right is not fettered by any conditions; it is an absolute right which a plaintiff can exercise at his sweet will at any time before the judgment is delivered In Allah Baksh v Niamat Ali 1892 All WN 53 (1), the Court described the right a "absolute" and capable of being exercised "with out any permission from the Court'. Sub-rule (4) is a proviso to Sub-rule (2), which refer-to withdrawal with liberty to me a fresh suit which withdrawal only requires, permission of the Court. The plaintiff does not need consent of the defendant or permission or confirmation of the Court. In the instant case the with drawal was without liberty to file a fresh suit and consequently wo shall leave out of con-sideration withdrawal with liberty to file a fresh suit. In Hasan Badsha v. Raziah Begam, AIR 1949 Mad 772, it was observed that normally a plaintiff has a right to withdraw his suit without reference to the defendants' convenience and without the Courts permission; (the High Court added that there is a limit to the right in suits of a particular nature but we are not concerned with such suits here). Reference may also be made to Veeraswami v. Lakshmudu AIR 1951 Mad 715 and Mahant Biharidasji v Parshottam Das, 1908 32 ILR(Bom) 345.
Next it is to be noted that no act is required to be done by the Court to complete or effectuate a plaintiff's withdrawal of his suit There is no provision for any act to be done in the suit by the Court for making the withdrawal effective or even after the withdrawal it is not even required to pass any order. Withdrawal of a suit is itself its end. A plaintiff withdrawing his suit is liable for such costs as the Court may award; so the Court is empowered to pass an order only in respect of the costs. The liability for costs arises out of the plaintiff's withdrawing his suit; the suit has been withdrawn and consequently he becomes liable. The Court's order awarding costs against him is a consequence of the withdrawal, which means that the withdrawal is already complete and effective The order is not an element of the withdrawal and is not required to complete or effectuate it. In Lakshmanan Chetty v. Muthaya Chetty, 1921 40 MadLJ 126. Sadasiva Aiyar, J. pointed out at p. 137 that as regards unconditional withdrawal. "It is..... wholly at the option of the plaintiff and the Court has nothing to do with it except as regards providing for costs... and it is only where he wants some permission that he has to make an application under Clause 2. In ILR 32 Bom 345 (supra) Sir Lawrence Jenkins, C. J, said at p. 347 that "if a party desires to withdraw from the suit with such liberty, then he must apply to the Court to permit him so to withdraw. If he does not desire to have that liberty, then he can withdraw of his own motion and no order of the Court is necessary". We respectfully agree with these observations and respectfully differ from the contrary obser-vations to which we shall refer presently.

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