1 WP 7143/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7143 OF 2010 George Punnackal Joseph .. Petitioner V/s Leo Group Coop. Hsg. Soc. Ltd. & Ors. .. Respondents Mr. A.R. Pande for the petitioner. Mr. Bharat Joshi for respondent no.1. Mr. R.R. Mishra for respondent nos.2 to 10. CORAM : D.G. KARNIK, J. DATE : 8TH DECEMBER 2010 P.C. : 1. Heard. 2. The respondent no.1 filed a suit (S.C. Suit No. 508 of 2001) against the petitioner for injunction restraining the petitioner from interfering with the development of the suit property and/or encroaching upon and/or trespassing and carrying out construction of any nature in the suit property. In the said suit, some interim orders were passed and the matter was thereafter adjourned for hearing of the suit. The suit came up for hearing before the Court some time in the year 2008. On 3rd November 2008, the respondent no.1 informed the Court that it did not 2 WP 7143/10 wish to proceed with the suit and therefore the suit be disposed off for non-prosecution. The request of the respondent no.1 for disposal of the suit was opposed by the petitioner and therefore the matter was adjourned for hearing of the application. After hearing the parties, by an order dated 27th July 2010 the learned Judge of the City Civil Court allowed the application and ordered that the suit stood disposed off for want of prosecution along with unheard notices of motion and other interim applications. The petitioner has challenged the order by this petition. 3. The respondent no.1, who was the original plaintiff, had prayed for withdrawal of the suit without seeking any leave for filing a fresh suit on the same subject matter. As no leave of the Court was sought for filing a fresh suit on the same subject matter, and the withdrawal sought was unconditional the Court, in my view, had no option but to allow the withdrawal and dispose off the suit for want of prosecution. I am fortified in my view by a decision of the Supreme Court rendered in Shiv Prasad v. Durga Prasad, AIR 1975 SC 957, wherein the Supreme Court has observed: “Every applicant has a right to unconditionally withdraw his application and his unilateral act in that 3 WP 7143/10 behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the Court.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.” The Supreme Court has held that every applicant has a right to withdraw his application unconditionally. An order of the Court permitting withdrawal of an application is not necessary and the withdrawal is complete as soon as the applicant informs that he wishes to withdraw the application. What is observed by the Supreme Court regarding an application would apply equally to a suit. Every plaintiff has a right to withdraw his suit unconditionally and the withdrawal of the suit is complete as soon as he intimates to the Court his unilateral decision to withdraw the suit. 4. Learned counsel for the petitioner submitted that the respondent no.1 had secured some benefits under an interim order passed earlier and therefore the respondent should not 4 WP 7143/10 have been allowed to withdraw the suit until he restored the benefits which he derived under an interim order. As stated earlier, the withdrawal of the suit was complete as soon as the respondent intimated the Court that he did not wish to prosecute the suit. It would be open to the petitioner to take appropriate remedy available to him in law for restitution or otherwise for enforcement of any of the rights which he claims to have accrued on account of the vacating of the interim orders on withdrawal of the suit. 5. For these reasons, there is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK, J.)