Gujarat High Court
Vishwesh Jitendra Gajjar vs Neha Himanshu Gajjar on 30 June, 2025
NEUTRAL CITATION
C/SCA/8909/2023 JUDGMENT DATED: 30/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8909 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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VISHWESH JITENDRA GAJJAR
Versus
NEHA HIMANSHU GAJJAR & ORS.
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Appearance:
MR UDAY R BHATT(192) for the Petitioner(s) No. 1
ADITYA R GUNDECHA(8869) for the Respondent(s) No. 2
LAW OFFICER BRANCH(420) for the Respondent(s) No. 3
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 30/06/2025
ORAL JUDGMENT
1. The present writ application is filed under Articles 14,
19, 21, 226 and 227 of the Constitution of India, having
challenged two sets of orders passed by the City Civil Court,
Ahmedabad, by way of a singular writ application. As such, on
this account alone, this Court would have dismissed the matter
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but, without being too technical, allowed the learned advocate
for the petitioner to argue the matter on its merits.
2. At the outset, it is required to be observed that though
this application is filed under various Articles of the
Constitution of India and has also joined Ahmedabad City Civil
Court as Respondent no.3, in light of the direct and clear
pronouncement of the Honourable Supreme Court of India
referred herein after, orders impugned being passed by civil
court, such orders can be challenged only by way of
application filed under Article 227 of the Constitution of India.
It would be apt to refer in the case of Radhey Shyam & Anr.
vs Chhabi Nath & Ors., reported in 2015 (5) SCC 423,
wherein, in para 27, it was held thus:-
“Thus, we are of the view that judicial orders
of civil courts are not amenable to a writ of
certiorari under Article 226. We are also in
agreement with the view of the referring Bench
that a writ of mandamus does not lie against a
private person not discharging any public duty.
Scope of Article 227 is different from Article
226.”
(Emphasis supplied)
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3. So, in view of the aforesaid, the present writ application
needs to be treated as filed under Article 227 of the
Constitution of India.
4. At the outset, it is required to be observed that the
conduct of the petitioner, and so also his lawyer, who has
consumed the time of this Court by unnecessary reading the
plaint and other documents which are not required to be read
to decide the issue raised in the application and, despite
drawing attention to the legal position of law in regard to the
filing of a withdrawal pursis by a plaintiff and its effect,
instead of answering and replying to such position of law,
unnecessarily lingered the hearing of the matter wherein,
during the course of his submission, he made certain
unwarranted remarks against the Trial Court concerned, who is
also joined as Respondent no.3 in the present application.
5. When this Court warned the learned advocate to face the
consequences for such unwarranted remarks made during the
course of his submission, and so also for unnecessarily
consuming the precious time of the Court, who is already
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overburdened, but at the cost of other litigants, learned
advocate, as on his style, read the pleadings made in the
impugned application and so also the plaint. The behaviour of
the learned advocate is deplorable, making unwarranted
remarks against the Trial Court concerned to the effect that, in
haste and to get an early and slipshod manner and for easy
disposal of the suit, without giving any opportunity of hearing
to the petitioner, it disposed of the suit. Such an unpardonable
behaviour of the learned advocate, who is one of the senior
members of the Bar of this High Court, is required to be
deprecated in all respects. The Court keeps its restraint by not
sending the matter to the Bar Council to take appropriate
action against such behaviour of the learned advocate
appearing for the petitioner but puts a word of caution that, in
the future, if he repeats such behaviour, the Court will not
hesitate to refer the matter to the Bar Council for appropriate
action.
6. As such, the present application is filed seeking following
reliefs:-
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“5. It is therefore it is prayed that the Hon’ble Court be pleased
to issue appropriate Writ/s including Writ/s of mandamus
/certiorari / prohibition or any other Writ, Order/s or Direction/s
in the nature of an appropriate Writ:
5.1 To admit this Petition and call for the Records and
Proceedings of the City Suit no. CS 1353 of 2014, and the Civil
Miscellaneous Application no. CMADC 613 of 2021 in Civil Suit
no. CS 1353 of 2014 from Hon’ble Ahmedabad City Civil Court
at Ahmedabad.
5.2 To quash and set aside Order dtd. 27th Sep. 2021 in the
Civil Suit no. CS 1353 of 2014 (Annexure B) and restore the
said suit to file of the Learned Trial Court.
5.3 To quash and set aside Order dtd. 19th Oct. 2021 in the Civil
Miscellaneous Application no. CMADC 613 of 2021 (Annexure F)
and allow the same.
5.4 To hold that the rights of the Petitioner inter alia under Article
14, 19 and 21 of the Constitution of India stand violated, pass such
and other Order/s deemed fit and proper for redressal.
5.5 To hold on the facts and circumstances wherein all
fundamental rights of the Petitioner are violated, pass such other
and further Order/s deemed fit and proper.
5.6 To hold that and be pleased to Order initiation of appropriate
Criminal legal actions against the Opponent/Respondent no. 1, and
others directly / indirectly, involved on facts and circumstances of
the Case.
5.7 To hold that and be pleased to order initiation of
appropriate legal actions against all concerned for the
illegalities committed by them against the interests of the
Petitioner and the Society at large, as may be deemed fit and
proper on the facts and in the circumstances of the case.
5.8 To allow, grant and provide cost of the Petition to the Petitioner
in the peculiar facts and circumstances of the case.
5.9 To pass any other and further Order/s as may be deemed fit,
just and necessary by this Hon’ble Court in the facts and
circumstances of the Case.”
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7. At the outset, before adverting to the facts germane in
the matter, it is required to be observed that in light of the
aforesaid pronouncement of the Full Bench in the case of
Radhey Shyam (supra), Respondent no.3, who is a Trial Court,
having been wrongly joined in the present application, needs
to be spared from the present application. Nonetheless, this
Court having issued notice to all respondents vide its order
dated 26th September 2023, learned advocate Mr. Hamesh
Naidu, appearing for Respondent no.3 – the Trial Court,
pointed out to this Court that prayer 5.7 made in the present
application affects its interest, as the petitioner is praying to
initiate appropriate legal action against all concerned for
illegalities committed by them which includes respondent No.3,
and to that extent, he may be allowed to assist this Court.
8. True, the prayer made in para 5.7 of the present
application is an omnibus prayer and is made and worded in a
manner which may include Respondent no.3, i.e., the Trial
Court, and such prayer could not have been made by the
petitioner, at least against the Trial Court. But as observed
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hereinabove, during the course of his submission, several
unwarranted facts/contentions/allegations were made by the
learned advocate against the Trial Court concerned, which are
highly irresponsible statements and requires to be deprecated
with all humility at my command.
9. When the learned advocate for the petitioner was
confronted with the aforesaid, having realized that the
comments and allegations made by him during the course of
his submission and/or made in the pleading are not
substantiated, he requested this Court to allow the petitioner to
drop such prayer and to delete Respondent no.3 from the array
of parties. According to the learned advocate, to maintain the
present petition under Article 226 of the Constitution of India,
he had joined Respondent no.3, i.e., the Trial Court, but had
not intended to seek any legal action against the Trial Court,
though not clarified specifically in prayer clause 5.7.
10. This Court would have accepted such request made by
the learned advocate for the petitioner, had it been done at
the first instance, by considering that it was inadvertently done
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by the petitioner under a mistaken belief, but not when caught
at the fag of hearing as its pointed out by the learned
advocate appearing for Respondent no.3 in his arguments.
11. Such misadventure on the part of the petitioner, whether
consciously or unconsciously done, requires to be set at naught
with a strong and loud message to such an unscrupulous
litigant who dares to question the dignity of the Court by
making any sort of allegation whenever he thinks it fit to do
so made then tender apology when caught, according to my
view, such apology is without any remorse not to be accepted
without sending clear message including imposing cost.
12. This Court, being a Constitutional Court, is not only
required to stop such kind of litigant but to send a stern
message to society, is required to impose a heavy cost upon
such an unscrupulous litigant who is trying to malign the
image of the Court in the minds of the public at large and has
tried to browbeat the Trial Court by joining it in the
proceeding where the Trial Court was not required to be
joined. This Court would do so in later part of its judgement.
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13. Now, adverting back to the facts of the present case,
which are as under:-
13.1. The petitioner herein is the sole defendant in Regular
Civil Suit No. 1353 of 2014, filed by Respondent Nos. 1 and 2
herein, which was withdrawn unconditionally by Respondent
no.1 herein – plaintiff no.1, having submitted withdrawal
pursis on 23rd September, 2021.
13.2. The suit appears to have been filed seeking prohibitory
injunction against the defendant and his agent, thereby praying
that the defendant and his agent be restrained from entering
into the business premises of the plaintiffs and not to cause
damage to the machinery, etc., lying inside the business
premises. The defendant appears to have filed a counterclaim
in the suit, which is also pending as on today.
13.3. Plaintiff no.2 is reported to have died on 03.05.2021,
thereafter, Plaintiff no.1, who happens to be the wife of
plaintiff no.2, filed the impugned withdrawal pursis below
Exhibit 51, wherein the defendant has endorsed that the
counterclaim is pending and that he has an objection which is
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to be decided. Such endorsement appears to have been put on
the withdrawal pursis by the defendant on 24.09.2021.
13.4. The Trial Court, vide its order dated 27th September,
2021, has allowed the plaintiff to withdraw the suit
unconditionally as prayed for as per the withdrawal pursis. At
the same time, in the impugned order itself, the Trial Court
has observed that the counterclaim filed by the defendant shall
survive and be proceeded accordingly.
13.5. Having come to know about such order, initially, the
defendant had filed an application below Exhibit 53 on 14th
October, 2021, signed by the learned advocate of the petitioner
as well as the petitioner himself, wherein it has been alleged
that Plaintiff no.2 already died and he is survived by his
mother and son, apart from Plaintiff no.1; without joining
them on record, they could not have been deprived of their
rights in the suit, and such withdrawal pursis could not have
been filed and so, not maintainable.
13.6. It is also stated that the defendant happens to be the
brother of Plaintiff no.2 and, being heir of Plaintiff no.2, has a
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right to appear in the matter being his one of legal heirs,
knowing fully well that he is not a Class-I legal heir of
Plaintiff no.2, only Class-I legal heirs of plaintiff No.2 who are
alive have a right to appear in the suit if so desire. The Trial
Court appears to have not taken cognizance of such
application, having not passed any order on it.
13.7. Thereafter, the defendant had preferred another
application on 14th October 2021, filed below Exhibit 54 in
the aforesaid suit, requesting the Trial Court to recall its order
dated 27th September, 2021. The Trial Court appears to have
advised the defendant to file an appropriate application as per
rule. So, Civil Miscellaneous Application No. 613 of 2021 came
to be filed in the aforesaid suit, which was claimed to have
been filed under Order 23 read with Section 151 of the Civil
Procedure Code, 1908 (hereinafter referred to as “CPC“).
13.8. The Trial Court, after hearing the parties, has
ultimately rejected such application of the defendant vide its
order dated 19.10.2022. Being aggrieved and dissatisfied with
the order dated 27th September 2021 passed below Exhibit 1
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in Civil Suit No. 1353 of 2014 and so also, the order dated
19th October, 2022 passed in Civil Miscellaneous Application
No. 613 of 2021 in Regular Civil Suit No. 1353 of 2014, the
present application has been filed by the defendant.
14. As observed hereinabove, by way of present application,
two sets of different orders could not have been challenged by
the petitioner as the grounds of their challenge would be
totally different but filed it. Nonetheless, this Court, to avoid
any technicality in this particular case, has not thrown out the
petitioner on this ground alone.
15. SUBMISSION OF THE PETITIONER-ORIGINAL
DEFENDANT
15.1. Learned advocate Mr. Bhatt, appearing for the
petitioner, would submit that without proper application of
mind, in haste, and to get an easy disposal, the Trial Court
has wrongly exercised its power, thereby permitting the
plaintiffs to withdraw the suit unconditionally.
15.2. Learned advocate Mr. Bhatt, would further submit that
in flagrant violation of the principles of natural justice, without
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giving any opportunity of hearing to the defendant, the
impugned order below Exhibit 1 was passed by the Trial
Court, which requires to be quashed and set aside.
15.3. Learned advocate Mr. Bhatt would further submit that
the orders impugned are not only erroneous and perverse but
also contrary to the settled principles of law and so also the
provisions of the CPC, and require to be interfered with by
this Court.
15.4. Learned advocate, Mr. Bhatt, would further submit
that by allowing the plaintiffs to withdraw the suit
unconditionally, a vested right of the defendant to pursue his
counterclaim would be jeopardized, and in fact, the Trial Court
has committed a jurisdictional error by allowing the plaintiffs
to withdraw the suit unconditionally.
15.5. Learned advocate Mr. Bhatt, would further submit that
as per the record, Plaintiff no.1 had already divorced Plaintiff
no.2 prior to the filing of the withdrawal pursis. In fact, when
it was brought to the notice of the Trial Court that Plaintiff
no.2 died on 03.05.2021, whereas the withdrawal pursis was
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filed on 23rd September 2021, such withdrawal of the suit at
the instance of Plaintiff no.1 could not have been entertained.
The right of other legal heirs of Plaintiff no.2 to pursue the
claim made by Plaintiff no.2 would get affected by such
withdrawal.
15.6. Learned advocate Mr. Bhatt, would further submit that
as per the contents of the withdrawal pursis, the plaintiffs
having handed over the suit property to its original owner, the
suit was requested to be withdrawn by the plaintiffs
unconditionally, whereas the subject matter of the suit is
totally different, as the plaintiffs were seeking prohibitory
injunctions against the defendant.
15.7. It is submitted that considering the averments made in
the plaint, which are bereft of any particulars and unsupported
by evidence produced by the plaintiffs in relation to the
allegations made in the plaint, it requires to be dismissed on
its merits, rather than allowing the plaintiffs to withdraw the
suit unconditionally.
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15.8. Learned advocate Mr. Bhatt, would further submit that
the Trial Court has not appreciated that the copy of the
withdrawal pursis was not served upon the defendant; he was
not made aware of the passing of the order and/or given any
opportunity of hearing to put forth his claim against the
withdrawal of the suit. According to the learned advocate, Mr.
Bhatt, in no circumstances, the suit could have been permitted
to be withdrawn by the Trial Court, as the counterclaim was
already filed by the defendant, whereby the plaintiff is
precluded from withdrawing his suit, as the right which has
vested and has accrued independently cannot be taken away by
the plaintiff.
15.9. It is submitted that no separate number to the
counterclaim was given by the Trial Court; thereby, it was
incumbent upon the Trial Court not to allow the plaintiff to
withdraw the suit as it would directly affect the vested right of
the defendant.
15.10. Lastly, learned advocate Mr. Bhatt, would further
submit that Plaintiff no.2 having died during the pendency of
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the suit, his legal heirs, being the mother and son of Plaintiff
no.2, should have been joined in the suit and been made
aware of the withdrawal of the suit, and not having done so,
it would amount to procedural illegality by the Trial Court
which requires to be reviewed by allowing the impugned
application, being Civil Miscellaneous Application No. 613 of
2021 but its not done so resulted into miscarriage of justice.
15.11. To buttress his argument, learned advocate Mr. Bhatt,
has relied upon the following decisions:-
(i) Bijayananda Patnaik Vs Satrughna Sahu And Others
Reported In AIR 1963 SC 1566 (Para -7)
(ii) Hulas Rai Baij Nath Vs Firm K. B. Bass & Co Reported In
AIR 1968 SC 111 (para -2)
(iii) Narharibhai Chaturbhai Patel; Nimbalkar Enterprises
Private Limited; Bharatbhai Chimanlal Patel
Versus Ashish Mukundlal Shah; Inter Overseas Real Estate
Limited; Mukundlal Raichand Shah; Prafulbhai Chimanlal
Patel; Registrar Reported In 2022 (4) GLR 2514 (Para – 16 & 19)
(iv) Sanjaybhai Lakhabhai Oderdra Versus Mineshbai Bhogilal
Patel & 2 Other(S) In SCA 3234/2024 Dated 02.09.02023 (Para –
9 & 10).
15.12. Making the above submission, learned advocate Mr.
Bhatt, would request this Court to allow the present
application.
16. SUBMISSION OF THE RESPONDENTS
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16.1. Learned advocate, Mr.Aditya R Gundecha, for the
private respondents/plaintiffs, would submit that the present
application is nothing but sheer abuse of the process of law by
the defendant, wherein he has not only made unwarranted
remarks against the procedure undertaken by the Trial Court
but has also alleged against the plaintiffs, which is uncalled
for.
16.2. Learned advocate, Mr. Gundecha, would further submit
that as per the settled legal position of law, and as per Order
23 Rule 1 of the CPC, which allows the plaintiffs to withdraw
the suit unconditionally, when such request is made by the
plaintiffs, the Court has to accept such request.
16.3. Learned advocate, Mr. Gundecha, would further submit
that all submissions made by learned advocate Mr. Bhatt are
bereft of any legal support, and out of frustration on the part
of the defendant, the plaintiff is dragged up to this Court in
unwanted litigation, which may be dismissed with costs.
16.4. Learned advocate Mr. Gundecha, would further submit
that as per settled law, once withdrawal pursis is filed by the
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plaintiffs declaring to the Court that the plaintiff wants to
unconditionally withdraw the suit, the suit is deemed to have
been withdrawn on the same day. It is submitted that the
question of observance of the principles of natural justice is
uncalled for, except to the effect that the defendant may claim
costs from the plaintiffs against the unconditional withdrawal
of the suit, which was not prayed for by the defendant in the
present case.
16.5. Learned advocate Mr. Gundecha, would further submit
that the defendant cannot complain against the order passed
below Exhibit 1 as prayed for, as the defendant had already
put his endorsement on the withdrawal pursis filed below
Exhibit 51, and later on, making a complaint about its non-
receipt and not affording an opportunity of hearing is nothing
but a false statement and allegation made against the plaintiffs
and the Trial Court concerned, which may not be accepted by
this Court in the absence of any material placed on record.
16.6. Lastly, advocate Mr. Gundecha would submit that the
plaintiff has already suffered a lot because of sheer harassment
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on the part of the defendant by filing frivolous applications
before the Trial Court and this Court and the surviving
plaintiff, being a lady, may be spared from such harassment by
this Court.
16.7. To buttress his argument, learned advocate Mr.
Gundecha would rely upon the decision of this Court in the
case of Jayantibhai @ Jayendrasingh Thakor vs. Dalsukhbhai
Ukabhai Chunara and others in Special Civil Application No.
7645 of 2023 decided on 16.06.2023.
17. Per Contra, Learned advocate Mr.Hamesh Naidu
appearing for respondent no.3 – Trial Court, as such, has
stated that the controversy germane in the matter is also
covered by several decisions of the Honourable Apex Court,
which have already been referred to by this Court in its
judgment and order dated 16.06.2023 passed in the case of
Jayantibhai (supra).
17.1. Nonetheless, learned advocate Mr. Naidu, as an officer
of the Court, has assisted and submitted that the judgments
which are cited by learned advocate Mr. Bhatt are not
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applicable to the facts of the present case; in fact, there is a
total misreading of such judgments by learned advocate Mr.
Bhatt.
17.2. At last, learned advocate Mr. Naidu would request this
Court that at least Respondent no.3 – Trial Court may be
absolved from the present litigation, having not only been
wrongly joined by the petitioner, but the prayer made in para
5.7 against it is unwarranted and uncalled for, as the Trial
Court is least concerned with the dispute between the parties.
17.3. Making the above submission, the learned advocates
appearing for the respondents request this Court to dismiss the
present application.
18. Heard the learned advocate appearing for the petitioner
Mr. Uday R. Bhatt, learned advocate Mr. Mr.Aditya R
Gundecha for respondent No.2 and learned advocate
Mr.Hamesh C. Naidu for respondent no.3.
19. No other and further submissions were made.
20. POINT FOR DETERMINATION
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20.1. Whether, in the facts and circumstances of the case,
the objections raised by the defendant against the
unconditional withdrawal of the suit by the plaintiff are
sustainable in law?
20.2. Whether, in the facts and circumstances of the case,
any legality, irregularity, and/or judicial error was committed
by the Trial Court while passing the impugned orders?
20.3. Whether, in the facts and circumstances of the case,
Trial Court requires to be joined as respondent No.3 in present
application and is there any abuse of process of law at
instance of petitioner, if yes, requires to be saddled with cost?
21. ANALYSIS
22. At the outset, it is required to be observed that the
present litigation at the instance of the defendant would show
that the quiets given by the plaintiffs to their suit is not
digested by the defendant, and which is confirmed by the
various applications filed by the defendant before the Trial
Court and so also argued before this Court.
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23. Nonetheless, this Court cannot be oblivious of the fact
that mere objection and/or resistance by the defendant against
the unconditional withdrawal of the suit prayed by the
plaintiffs would not deter this Court to succumb to such
attempt of ill-informed and misguided defendant.
24. Now, adverting to the issue germane in the matter, the
plaintiffs had filed the suit seeking prohibitory injunction
against the defendant, and during the pendency of the suit,
Plaintiff no.2, who happens to be the real brother of the
defendant, died on 03.05.2021, whereas Plaintiff no.1, who
happens to be the wife of Plaintiff no.2, decided to withdraw
the suit unconditionally, thereby submitted withdrawal purshis
on 23rd September, 2021. The impugned withdrawal purshis,
filed at Exhibit 51, would clearly indicate that the defendant
was aware of the submission of the impugned withdrawal
purshis, having made his objection and placed his signature on
it, which was dated 24th September, 2021. So, the first limb of
the argument of the learned advocate, Mr. Bhatt, that the copy
of the impugned withdrawal purshis was not served upon the
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defendant, is factually incorrect and bereft of any particulars,
as such while making his endorsement, the defendant never
stated that the copy of such impugned withdrawal purshis was
not received by him.
25. Be that as it may, nothing prevented the defendant at the
given point in time, once came to know about pursis, to
submit his response against the impugned withdrawal purshis.
For reasons best known to the defendant, he has chosen not to
submit his response.
26. As per Order 23, Rule 1 of the CPC, when a plaintiff
seeks unconditional withdrawal of the suit, the court has to
accept such request of the plaintiff and the defendant cannot
be allowed to object to such withdrawal except to demand
costs. The record reveals that prior to the passing of the order
permitting the plaintiffs to unconditionally withdraw the suit,
no such demand for costs was ever made by the defendant
and, in fact, was later on not pressed into service in express
terms.
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27. To clear the doubts in the minds of the defendant and
his learned advocate–who, though apprised of such position of
the law during initial course of his argument, but was not
ready to listen to and accepted the proposition of law laid
down by the Honourable Supreme Court of India in number of
its decisions, but went on arguing the matter, thereby wasted
the precious time of this Court. Nonetheless, this Court cannot
overlook such a proposition laid down by the Honourable
Supreme Court of India, as the same is at least binding to this
Court, and is, thereby, reproduced herein below.
28. It is first to refer and rely upon the decision of the
Hon’ble Supreme Court of India, first in the case of Shiv
Prasad v. Durga Prasad, reported in (1975) 1 SCC 405, wherein
it was held thus:-
“12. Even on the interpretation of Rule 89(2) which we have put we
are not prepared to accept the contention put forward on behalf of
the appellant that an application under Rule 90 does not stand
withdrawn until an order to that effect is recorded by the Court. The
applicant merely has to convey to the Court that he is withdrawing
his application under Rule 90 which he had filed prior to the making
of the application under Rule 89. Thereupon he becomes entitled to
make the latter application. Every applicant has a right to
unconditionally withdraw his application and his unilateral act
in that behalf is sufficient. No order of the Court is necessary
permitting him to withdraw the application. The Court mayPage 24 of 38
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make a formal order disposing of the application as withdrawn
but the withdrawal is not dependent on the order of the Court.
The act of withdrawal is complete as soon as the applicant
intimates the Court that he withdraws the application.
Respondent 1 has clearly done so here not only by mentioning in
his application under Rule 89 that he was withdrawing his
application under Rule 90 but also by filing a separate application to
that effect, in which not only the statement as to the withdrawal of
the application under Rule 90 was made but a prayer for the refund
of Rs 2000 was also made. The steps taken on behalf of
Respondent 1 in Miscellaneous Case No. 3/ 1967 even after the
filing of Miscellaneous Case No. 1/1968 were clearly superfluous
and of no effect. The steps taken did not nullify the withdrawal
made by Respondent 1 of his application under Rule 90 and did not
make the withdrawal merely on that account ineffective. Even if any
ambiguity was created by the taking of such steps, later on March
9, 1968 in clearest language it was intimated on behalf of
Respondent 1 that he was not pursuing his application under Rule
90. It was only then that the Court made a formal order recording its
dismissal. In our judgment on the facts and in the circumstances of
this case, the order of the Court made on March 9, 1968 had the
effect of merely recording the withdrawal of the application under
Rule 90 which was already effectively made on January 1, 1968.
Even without that order, the withdrawal was effective on that date.”
(Emphasis supplied)
29. The aforesaid principle was again reiterated by the
Hon’ble Supreme Court in the case of Anurag Mittal vs. Shaily
Mishra Mittal, reported in (2018) 9 SCC 691, wherein, taking
note of the provisions of Order 23, Rule 1 of the CPC, the
Hon’ble Supreme Court has held as under:-
“15. In case of a dissolution of marriage, a second marriage shall
be lawful only after dismissal of the appeal. Admittedly, the
marriage between the appellant and the respondent was on 6-
12-2011 i.e. before the order of withdrawal was passed by the
Court on 20-12-2011 [Anurag Mittal v. Rachna Mittal, 2011 SCC
OnLine Del 5694] . There is no dispute that the application for
withdrawal of the appeal was filed on 28-11-2011 i.e. prior to
the date of the marriage on 6-12-2011. We proceed to considerPage 25 of 38
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the point that whether the date of dismissal of the appeal
relates back to the date of filing of the application for
withdrawal of the appeal. Order 21 Rule 89(2) of the Code of Civil
Procedure, 1908 (hereinafter referred to as “CPC“) provides that
unless an application filed under Order 21 Rule 90 CPC is
withdrawn, a person shall not be entitled to make or prosecute an
application under Order 21 Rule 89 CPC.
16. In Shiv Prasad v. Durga Prasad [Shiv Prasad v. Durga Prasad,
(1975) 1 SCC 405] , the contention of the appellant therein that an
application filed under the aforesaid Rule 90 does not stand
withdrawn until an order to the effect is recorded by the court, was
not accepted. It was held that every applicant has a right to
unconditionally withdraw his application and his unilateral act in that
behalf is sufficient. No order of the Court is necessary permitting
the withdrawal of the application. This Court concluded that the act
of withdrawal is complete as soon as the applicant intimates the
Court that he intends to withdraw the application.
17. The High Court of Bombay in Anil Dinmani Shankar Joshi v.
Panvel Municipal Council [Anil Dinmani Shankar Joshi v. Panvel
Municipal Council, 2003 SCC OnLine Bom 24, paras 3-4 : AIR 2003
Bom 238, p. 239] followed the judgment of this Court in Shiv Prasad
[Shiv Prasad v. Durga Prasad, (1975) 1 SCC 405] and held that the
said judgment is applicable to suits also. The High Court
recognised the unconditional right of the plaintiff to withdraw his suit
and held that the withdrawal would be complete as soon as the
plaintiff files his purshis of withdrawal.
18. Order 23 Rule 1(1) CPC enables the plaintiff to abandon his suit
or abandon a part of his claim against all or any of the defendants.
Order 23 Rule 1(3) CPC requires the satisfaction of the Court for
withdrawal of the suit by the plaintiff in case he is seeking liberty to
institute a fresh suit. While observing that the word abandonment in
Order 23 Rule 1(1) CPC is “absolute withdrawal” which is different
from the withdrawal after taking permission of the court, this Court
held as follows [K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] :
(Kokila case [K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] , SCC
pp. 463-64, para 12)
“12. The law as to withdrawal of suits as enacted in the
present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his
claim as a matter of right without the permission of the court;
in that case he will be precluded from suing again on the
same cause of action. Neither can the plaintiff abandon a suit
or a part of the suit reserving to himself a right to bring a fresh
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suit, nor can the defendant insist that the plaintiff must be
compelled to proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule
(3), be permitted by the court to withdraw from a suit with
liberty to sue afresh on the same cause of action. Such liberty
being granted by the court enables the plaintiff to avoid the
bar in Order 2 Rule 2 and Section 11 CPC.”
19. Order 23 Rule 1(1) CPC gives an absolute right to the plaintiff to
withdraw his suit or abandon any part of his claim. There is no doubt
that Order 23 Rule 1 CPC is applicable to appeals as well and the
appellant has the right to withdraw his appeal unconditionally and if he
makes such an application to the Court, it has to grant it. [Bijayananda
Patnaik v. Satrughna Sahu, (1964) 2 SCR 538 at p. 550 : AIR 1963 SC
1566, p. 1571, para 7] Therefore, the appeal is deemed to have
been withdrawn on 28-11-2011 i.e. the date of the filing of the
application for withdrawal. On 6-12-2011 which is the date of the
marriage between the appellant and the respondent, Ms Rachna
Aggarwal cannot be considered as a living spouse. Hence, Section
5(i) is not attracted and the marriage between the appellant and the
respondent cannot be declared as void.”
(Emphasis supplied)
30. At this stage, it is also profitable to place reliance on the
decision of the Hon’ble Apex Court in the case of Anil Kumar
Singh Vs. Vijay Pal Singh and others reported in (2018) 12
SCC 584, more particularly in Para- 15, 16, 23-28, which reads
as under :-
“15) The short question, which arose for consideration before
the High Court in the writ petition filed by defendant No.1
(respondent No.1 herein) was whether the two Courts below were
justified in allowing the application filed by the appellant (plaintiff)
under Order XXIII Rule 1 of the Code and thereby justified in
permitting the appellant (plaintiff) to withdraw the suit.Page 27 of 38
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16) In other words, the only question, which the High Court was
called upon to examine in the writ petition, was whether the appellant’s
(plaintiff’s) application filed under Order XXIII Rule 1 of the Code
praying for permission to withdraw the suit was rightly allowed by the
Trial Court or not.
xxxxxxxx
23) In our considered opinion, when the plaintiff files an
application under Order XXIII Rule 1 and prays for permission to
withdraw the suit, whether in full or part, he is always at liberty to
do so and in such case, the defendant has no right to raise any
objection to such prayer being made by the plaintiff except to ask
for payment of the cost to him by the plaintiff as provided in sub-
rule (4).
24) The reason is that while making a prayer to withdraw the
suit under Rule 1(1), the plaintiff does not ask for any leave to file
a fresh suit on the same subject matter. A mere withdrawal of the
suit without asking for anything more can, therefore, be always
permitted. In other words, the defendant has no right to compel
the plaintiff to prosecute the suit by opposing the withdrawal of
suit sought by the plaintiff except to claim the cost for filing a suit
against him.
25) However, when the plaintiff applies for withdrawal of the suit
along with a prayer to grant him permission to file a fresh suit on the
same subject matter as provided in sub-rule (3) of Rule 1 then in such
event, the defendant can object to such prayer made by the plaintiff. In
such event, it is for the Court to decide as to whether the permission to
seek withdrawal of the suit should be granted to the plaintiff and, if so,
on what terms as provided in sub-rule (3) of Rule 1.
26) Now coming to the facts of the case, we are of the considered
opinion that the Trial Court and the Revision Court (A.D.J) were
justified in permitting the appellant (plaintiff) to withdraw the suit under
sub-rule (1) of Rule 1. In other words, since the appellant had applied
for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was
justified in permitting withdrawal of the suit subject to the appellant
paying cost of Rs.350/- to respondent No.1 (defendant No.1). Such
order, in our view, was in conformity with sub-rule (3) of Rule 1 and
was rightly upheld by the Revision Court.
27) The High Court, however, committed jurisdictional error in
allowing the defendant’s writ petition by finding fault in the orders of the
Trial Court and Revision Court and giving directions to the plaintiff to
place defendant No.1 in possession of the suit land without there being
any basis whatsoever.
28) As mentioned above, the High Court should have seen that the
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scope of writ petition was confined to examine the question as to
whether the Trial Court and Revision Court were justified in allowing
the application filed by the plaintiff under Order XXIII Rule 1 of the
Code and to decide this question, the High Court should have confined
its inquiry to examine as to whether the requirements of Order XXIII
Rule 1 were complied with or not but not beyond it.”
(emphasis supplied)
31. This Court has also had an occasion to answer the issue
which has been raised by the learned advocate Mr. Bhatt, in
its decision, in the case of Rameshbhai Chhelshankar Oza
Himself & As Director Of Versus Deven Jagnath Joshi & Ors. in
Appeal from Order No. 43 of 1999, wherein, it was held thus.
“16. Thus, what is deduced from the ratio laid down by the
Hon’ble Apex Court in the case of Anil Kumar Singh
(supra) as well as the above cited decisions of the Co-
ordinate Bench of this Court, that in a case where the
plaintiff has prayed for unconditionally withdrawal of his suit
then, the defendant has no right to object such withdrawal of
the suit except praying for costs.”
(Emphasis supplied)
32. The conjoint reading of the aforesaid proposition of law
clears any doubt in anyone’s mind that once a withdrawal
purshis is submitted, whereby the plaintiffs seek to
unconditionally withdraw their suit, the suit is deemed to have
been withdrawn on that very day and, irrespective of any
objection so raised by the defendant, the court has to accept
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such request of the plaintiff, except by awarding costs to the
defendant of demanded.
33. Thus, in view of the aforesaid facts and circumstances of
the present case, as well as the law laid down by the Supreme
Court of India and so also considering the provisions of Order
23, Rule 1 of the CPC, I do not find any error in the
impugned order dated the 27th September, 2021 passed by the
Trial Court while permitting the plaintiffs to unconditionally
withdraw the suit.
34. It is apposite and required to be mentioned that the Trial
Court has categorically observed that the counter-claim filed by
the defendant survived and be proceeded accordingly. Thus,
the Trial Court has not taken away the vested right of the
defendant of pursuing his counter-claim in accordance with law
as alleged.
35. The series of judgments so cited by the learned advocate
Mr. Bhatt are not applicable to the facts of the present case,
as the issues germane in those cases are clearly different and
distinguishable one, but unmindful of the case on hand cited
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by him. For the sake of citing decisions, the learned advocate,
Mr. Bhatt, had cited those decisions just to linger on the
matter further. At the same time, the learned advocate, Mr.
Bhatt, was not able to distinguish the aforesaid judgments as
referred hereinabove of the Honourable Supreme Court of
India, although brazenly stated during the course of his
arguments that he would be able to distinguish all these
judgments which he could not at end of his arguments.
36. This Court would have rested the matter here and not
required to go further in the matter, but as the learned
advocate, Mr. Bhatt, had insisted on being allowed to read
plaint and his impugned application being Civil Miscellaneous
Application No.613 of 2021, filed before the Trial Court, and
other applications, whereby the Trial Court, vide its order
dated 19th October, 2022, passed an order thereby rejected
such application, this Court would also like to appreciate such
facts and the submissions made by the learned advocate, Mr.
Bhatt.
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37. The impugned application, being Civil Miscellaneous
Application No.613 of 2021, appears to have been filed under
Order 23 read with Section 151 of the CPC, etc. As such, the
prayer made in such application was to cancel/recall/review
the order dated 27th September, 2021 passed by the Trial Court
below Exhibit 1 in the suit. Though such application was filed
through the learned advocate, Mr. Bhatt but a correct
provision of law was not mentioned, i.e., Order 47 read with
Section 114 of the CPC. This shows how casually, without
quoting the appropriate provisions of law, the application was
filed before the Trial Court.
38. Nonetheless, the Trial Court not only registered such an
application but heard the matter on its merits and, ultimately,
finding no substance in the application, so rejected it.
39. This Court is also of the same opinion that no gross
illegality and/or irregularity was committed by the Trial Court
in accepting the unconditional withdrawal of the suit of the
plaintiffs and in not entertaining the application filed at the
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instance of the defendant, no fault can be found with the Trial
Court when it rejected impugned application of defendant. As
such, there is no gross error of law and/or jurisdictional error
committed by the Trial Court while rejecting the impugned
application filed by the defendant.
40. Learned advocate Mr. Bhatt has further argued that the
reason for submitting the withdrawal purshis is not in
consonance with the pleadings of the plaintiff; thereby, the
Trial Court could not have permitted the plaintiff to withdraw
the suit.
40.1. Such an argument is thoroughly misconceived not only
on facts but on law, inasmuch as, Order 23, Rule 1 of the CPC
would not require and/or cast a duty upon the plaintiffs to
state any reason for the unconditional withdrawal of their suit.
41. Furthermore, by overlooking the fact that the suit was
filed seeking prohibitory injunction against the defendant, as
according to the plaintiff, the defendant and/or his agent was
trying to interfere with their possession of the suit premises.
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Whereas, what has been stated in the withdrawal purshis is
that as the plaintiff has handed over the possession of the suit
premises to its original owner, the plaintiff would not like to
pursue the suit anymore and accordingly wants to
unconditionally withdraw the suit.
42. It is a matter of common sense, which is not appreciated
by learned advocate Mr. Bhatt, that when the cause of action
for filing the suit does not survive as, according to the
plaintiff, she has handed over possession of the suit premises
to its original owner, the question of seeking any prohibitory
injunction under the suit is out of place.
43. This vital fact was either unnoticed by the defendant or
his lawyer and/or purposely unnoticed by them. But if
understood in correct perspective, it would not consume the
precious time of the Trial Court and of this Court, which
required to invest into such a frivolous litigation at the hands
of an unscrupulous litigant who has aimed to malign the image
of the Trial Court not only by joining the Trial Court in the
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present application but also by making a prayer for taking
appropriate action against it for no good reasons.
44. This Court would have stated much more about the
entire conduct of the defendant and his lawyer, who have at
several stages from filing the applications before Trial Court,
and also the present application, made an incorrect statement
which was, in fact, admitted by learned advocate Mr. Bhatt
during the course of his submission, but the fact remains that
the defendant wants to keep alive the dispute which was
already dropped by the plaintiff.
45. It is indigestible that, on the one hand, the defendant is
insisting that there is no substance in the plaint but, on the
other hand, he is making application after application stating
that such suit could not have been permitted to be withdrawn
by the Trial Court and, as such, the legal heirs of plaintiff No.
2 were required to be brought on record whereby the suit can
be continued. It is unfathomable that for what purposes and
reasons, the defendant wants to continue the suit which,
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according to him, is not worth to stand in law and as such he
is not proceeding with his own counterclaim which is survived
irrespective of withdrawal of the suit.
46. Thus, conjoint reading of the aforesaid, would lead to
only one conclusion: that the filing of the present application
is nothing but a sheer abuse of the process of law by an
unscrupulous litigant who wants to browbeat the Trial Court
and also to consume the precious time of this Court.
47. According to this Court, such unwarranted litigation
requires to be stopped at the threshold by nipped in the bud,
and that too with costs.
48. CONCLUSION
48.1. The upshot of the aforesaid observations, discussion,
and reasons would find no merit in the present application;
rather, I have found that it is a frivolous, unwarranted, and
unfathomable litigation at the hands of an unscrupulous
litigant, which requires to be rejected with costs, which is
quantified to Rs.25,000/-, to be paid by the petitioner herein
to respondent No.1 – plaintiff No. 1.
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48.2. The Trial Court was not requires to be joined as
respondent No.3 in present application which is nothing but a
sheer abuse of process of law at instance of petitioner. So,
respondent No.3 is not only deleted from this matter but its
duty of this Court to save respondent No.3 who not requires to
face any more litigation being filed at instance of petitioner in
any Court in future.
48.3. As the petitioner has consumed the precious time of
the Trial Court as well as of this Court by filing such frivolous
applications and so also wrongly joined Trial Court in this
matter, petitioner is hereby directed to deposit a sum of
Rs.25,000/- with the District Legal Services Authority,
Ahmedabad (City) as an additional cost.
48.4. Both these aforesaid costs shall be paid and deposited
by the petitioner within a period of four weeks from today.
48.5. The Trial Court is hereby directed to ensure
compliance of the payment of costs by the petitioner to the
respective parties, and in a case where the petitioner fails to
pay and deposit such amount of costs, the Trial Court may
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pass an appropriate order in the counter-claim which is filed at
the instance of the petitioner-defendant pending before it.
48.6. It shall be open for plaintiff No. 2 as well as the
District Legal Services Authority, Ahmedabad (City), to recover
the amount of costs from the petitioner by way of alien
recovery in accordance with law.
49. Before parting with, this Court warns learned advocate
Mr. Bhatt to take note of his aforesaid conduct, as noticed and
observed by this Court and this time spares him by not taking
any action against him, with the hope and trust that, being a
senior member of the Bar, he will not repeat such behaviour
in the future but introspect himself.
50. In view of the aforesaid, the present application is bereft
of any material particulars, lacks merit, and requires to be
rejected, which is hereby REJECTED with costs as aforesaid.
Notice discharged.
(MAULIK J.SHELAT,J)
MOHD MONIS
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