- (1.) CHALLENGE in this civil revision is to the order dated 28th July, 2007 whereby the learned Additional District Judge (Fast Track) No. 6, Jaipur City. Jaipur allowed the application dated 28th February, 2007 filed by the plaintiff and declined to dismiss the suit on an application dated 21st August, 2006 or under Order 7, Rule 11 of CPC.
(2.) HEARD the learned counsel for the parties and perused the relevant material on record. During the arguments it emerged that two cross suits came to be filed by both the parties, one for declaration and permanent injunction and another for partition. It also emerged that the suit for declaration and permanent injunction filed by the petitioner was decreed by the learned trial Court in favour of the revisionist -plaintiff and against the non -revisionist. Aggrieved with the judgment and decree, the non -revisionists filed an appeal, which also stood dismissed in accordance with the terms of compromise, as both the parties had settled their dispute by way of compromise. Pursuant to the said compromise, the non -revisionists filed an application dated 21st August, 2006 seeking leave of the Court to withdraw the suit. Before any order could have been passed by the learned trial Court on this application, non -revisionist -plaintiffs filed another application dated 28th February, 2007 seeking permission to withdraw the application dated 21st August, 2006. The learned trial Court vide impugned order dated 28th July, 2007 allowed the application dated 28th February, 2007 and declined to dismiss the suit on the basis of an application dated 21st August, 2006 or under Order 7, Rule 11 of CPC. Hence, this revision by revisionist defendant of suit No. 88/2007 pending in the Court of Additional District Judge (Fast Track) No. 6, Jaipur City, Jaipur. Learned counsel for the revisionist canvassed that both the parties had entered into a compromise and pursuant to that compromise the appeal of non -revisionist -plaintiffs stood dismissed. The subject -matter in both the suits of declaration and permanent injunction as also partition was the same. The present suit property fell to the share of the revisionist and the plaintiff -non -revisionists thus had handed over the possession thereof to the revisionist. The plaintiff in his application dated 21st August, 2006 distinctly admitted that he had no right to the property in dispute and the property was in the possession of the revisionist defendant. Hence, he should be allowed to withdraw the suit. When the dispute had been settled by way of compromise and the plaintiff non -revisionists had filed an application seeking permission to withdraw the suit, there was no reason for the Court to allow the application to withdraw the application relating to withdrawing the suit. Learned counsel further canvassed that the learned trial Court should not have interfered with the application dated 21st August, 2006 when the parties had entered into compromise and the compromise was substantially acted upon. The learned trial Court ought to have stopped the proceedings and prevented the time of the parties and the Court from being wasted. He cited two judgments, reported in (1998) 3 SCC 573 : (AIR 1998 SC 1297); K. K. Modi v. K. N. Modi and (2006) 3 SCC 100: (AIR 2006 SC 1828); Mayar (H. K.) Ltd. v. Owners and Parties Vessel M. M. Fortune Express, in support of his arguments. E -converso, the learned counsel for the non -revisionists contended that the application dated 21st August, 2006 relating to seeking permission to withdraw the suit was pending with the Court and the same was not decided. He further contended that the plaintiff had every right to withdraw the application before any order having been passed by the Court thereupon. He has cited the case of Yeshwant Govardhan v. Totaram Avasu, reported in AIR 1958 Bombay 28, to support his argument.
(3.) THE only crucial question springing for consideration in the instant case is that as to whether the plaintiff had a right to withdraw that application which he had once presented for seeking permission of the Court to withdraw the suit ? In the case of Yeshwant Govardhan v. Totaram Avasu (supra) the Division Bench of the Bombay High Court held thus : If a plaintiff withdraws from his suit or abandons part of his claim, it is not certainly a matter in which the defendant can have his say. The defendant cannot compel a plaintiff to prosecute his suit and if a plaintiff, there - fore, withdraws his suit, he has entirely a matter of his choice. If therefore, the plaintiff has a right to withdraw his suit, he has equally, a right to withdraw his withdrawal and so long as the Court has not made an order showing that the withdrawal has become complete or effective, there is always a locus poenitentiae for the plaintiff to withdraw his withdrawal. In so holding, there is no injustice to the defendant. If the defendant cannot compel a plaintiff to continue his suit, the defendant cannot, equally, compel a plaintiff not to withdraw his withdrawal we think, therefore, that, in law, the true position is that it is open to a plaintiff to withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by an order of the Court. This view is supported by at least two decisions reported in Lakshmana Pillai v. Appalwar Alwar Ayyangar, AIR 1923 Mad 246 and in Midnapore Zemindary Co. Ltd. V. Bijoy Singh ; AIR 1941 Cal 1." Now adverting to the case on hand, it is found that the facts of this case are also analogous to that of the case cited by the learned counsel for the non -revisionists - plaintiffs. In this case also plaintiff filed an application on 21st August, 2006 seeking permission of the Court to withdraw the suit but no order came to be passed by the Court on the said application. Before any order could have been passed by the Court, the plaintiff filed another application on 28th February, 2007 seeking permission to withdraw the application dated 21st August, 2006 wherein he had sought permission to withdraw the suit. It is true that so long as the Court has not made an order showing that the withdrawal has become complete or effective, there is always a locus poenitentiae for the plaintiff to withdraw his withdrawal. Hence, in the light of the above pronouncement of Division Bench of Bombay High Court, the impugned order is found to be perfectly just and proper. It suffers from no infirmity or illegality and the same, to my firm view, warrants no intervention.;