D.K.Seth, J. - (1.) IN a suit for declaration and/or cancellation of the deed of sale the plaintiffs filed an application on 15.11.1988, which is Annexure 3 to the writ petition. Before any order could be passed on the said application, the plaintiffs filed another application on 29.11.1988, which is Annexure-4 to the writ petition, for dismissal of the said application as contained in Annexure 3 to the writ petition. The defendants had filed his objection to the said application contained in Annexure 4 to the writ petition. On 5.12.1996 the said application, contained in Annexure 3 to the writ petition was dismissed, while allowing application contained in Annexure 4 to the writ petition. A revision was filed against the order dated 5.12.1996. By an order dated 29.1.1997 the said revision was also dismissed. It is this order which has since been challenged by means of this writ petition.
(2.) DR. R. G. Padia, learned counsel for the petitioners contends that the application as contained in Annexure 3 to the writ petition, being an application under Order XXIII, Rule 1 of the Code of Civil Procedure, the same become absolute as soon it was filed. Therefore, the same cannot be withdrawn or cancelled by means of any subsequent application. Inasmuch as withdrawal of the suit is unilateral act which become absolute as soon the same is filed before the court. Since no leave was asked for, therefore, it was not necessary that any order is to be passed by the court on the said application. In support of his contention he relies on the decision in the case of Smt Raisa Sultana v. Abdul Qadir and others, AIR 1966 All 318 and contends that a Division Bench of this Court had held that withdrawing of a suit is unilateral act of the plaintiff, it requires no permission or order of the court and is not subject to any condition and it becomes effective as soon as it is done. Therefore, dismissal of the said application as contained in Annexure 3 to the writ petition by reason of allowing the application contained in Annexure 4 to the writ petition is wholly contrary to law and is wholly without jurisdiction and perverse. Secondly, he contends that in the application contained in Annexure 3 to the writ petition, no consideration has been mentioned, whereas in the application contained in Annexure 4 to the writ petition it is suggested that some consideration was proposed, but the same did not pass on to the plaintiff. In order to dispute, the said suggestion the defendants sought to examine the learned counsel of the plaintiff on the ground that the amount of consideration was paid to the counsel who had signed the application, contained in Annexure 3 to the writ petition. In order to stress on the genuineness he had drawn my attention to Annexure 3, which is said to have been signed not only by the counsel for the plaintiffs but also by both the defendants and the plaintiff, while the plaintiff had put in her left thumb impression. But the application for examination of the learned counsel for the plaintiffs was rejected by the learned trial court, which is illegal and irregular exercise jurisdiction, resulting in grave injustice culminated in the order passed by the learned trial court. His similar application made before the revisional court also stood dismissed, which again is illegal and irregular exercise of jurisdiction by the revisional court. On that ground as well the order impugned in the writ petition cannot be sustained. Sri Rajendra Rai, learned counsel appearing on behalf of respondents, on the other hand, contends that the ratio decided in the case of Smt Raisa Sultana (supra) referred to by Dr. Padia, is not applicable, in the facts and circumstances of the present case. According to him the present facts and circumstances of the case are clearly distinguishable from the facts involved in the said case on the basis of which the ratio decided therein was laid down. He led me through the contents of Annexures 3 and 4 to the writ petition in order to substantiate his contention. I have heard Dr. R. G. Padia appearing with Mr. Prakash Padia, for the petitioners and Sri Rajendra Rai, learned counsel appearing on behalf of respondents at some length. In order to appreciate the respective contentions it is necessary to examine the scope of Order XXIII, Rule 1 of the Code of Civil Procedure, which runs as follows : "Rule 1.-Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII, extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, In his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or , (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3) he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1) or to withdraw under sub-rule (3) any suit or part of a claim without the consent of the other plaintiffs."
(3.) PRIOR to 1976 amendment of the Code instead of the word 'abandon' now used in the present rule, the word 'withdraw' was used. Under the old rule there were two kinds of withdrawls namely, (1) absolute withdrawal and (2) withdrawal with the permission of the court. As the use of the word 'withdrawal' in relation to both kinds of withdrawals caused confusion, the rule is amended to avoid such confusion by the use of the word "abandon" in place of the word "withdrawal" in relation to the first kind of withdrawal mentioned in old sub-rule (1) namely absolute withdrawal'. In relation to second kind of withdrawal mentioned in old sub-rule (2) namely withdrawal with the permission of the court, the word "withdrawal" is used in the substituted Rule 1. This clear distinction is maintained throughout in the substituted rule. By reason of sab- rule (3) which correspond to old sub-rule (2). The second kind of withdrawal with leave to sue afresh, is required to be made with the permission of the Court. Admittedly the right to abandon is a right reserved to the plaintiffs and can be exercised unilaterally by the plaintiff himself without permission of the court. Such abandonment precludes filing of fresh suit on the same cause of action unless he obtains leave under sub- rule (3) as is. provided in sub-rule (4). It is so held in the case of M/s. Hulas Rai Baijnath. v. K. B. Bass and Company. AIR 1968 SC 111. In R Rammurthi v. Rajeswara Rao, AIR 1973 SC 643, it is laid down that where vested interest comes into existence before the prayer for withdrawal (now abandonment) is made court is not bound to allow withdrawal (now abandonment). But this can happen in only very limited circumstances, i.e., where a preliminary decree had been passed, a set off or counter claim had been claimed or in a partition suit after the defendant has gained the advantage of buying the share of the plaintiff etc.;