1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.04.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA and THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY W.A. (MD) No.201 of 2011 & M.P. (MD) Nos.1-3 of 2011 and Contempt Petition (MD) No.152 of 2011 & Sub-Application (MD) No.1 of 2011 Usilampatti Shatriyakula Hindu Nathathi Nadarkal Uravaimuraikku Pathiyamana Nadar Saraswathi Higher Secondary School and Primary School Paribalana Sabai Usilampatti represented by its Secretary (Regd. No.35 of 1961) V.K.S. Street Usilampatti Madurai District Appellant in W.A. No.201 of 2011 vs. 1 The Director of School Education College Road, Chennai 600 006 2 The District Registrar Periyakulam, Theni District 3 The Chief Educational Officer Madurai, Madurai District 4 The District Educational Officer Usilampatti Taluk, Madurai District 5 B. Jeyarajan 6 The Joint Director of School Education(Higher Secondary) Chennai 600 006 Respondents in W.A.No.201 of 2011 Usilampatti Shatriyakula Hindu Nathathi Nadarkal Uravaimuraikku Pathiyamana Nadar Saraswathi Higher Secondary School and Primary School Paribalana Sabai, Usilampatti represented by its Secretary (Regd. No.35 of 1961) V.K.S. Street Usilampatti Madurai District Petitioner in Cont. P. (MD) No.152/2011 vs. 1 R. Balakumar District Educational Officer Usilampatti Taluk, Madurai District 2 B. Jeyarajan https://hcservices.ecourts.gov.in/hcservices/ 2 3 Mr. Muthu Palanisamy Joint Director of School Education (Higher Secondary) Chennai 600 006 Respondents in Cont. P. (MD) No.152/2011 Writ Appeal filed under Clause 15 of the Letters Patent as against the order dated 04.02.2011 passed in W.P. No.12784 of 2010. WP(MD)No. 12784 of 2010: Writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the order passed by the Joint Director of School Education (Higher Secondary) Chennai-6 in his proceedings in Na.Ka.No.5436/W4/E2/10, dated 12.10.2010, quash the same and to forbear the educational authorities from approving any School Committee, Secretaryship or Correspondentship as claimed by the fifth respondent or his society (Regn.No.98 of 1991) or any person through the fifth respondent to the Higher Secondary School and Primary School run by the petitioner Paribalana Sabai. Contempt Petition filed under Sections 10 and 11 of the Contempt of Courts Act, 70/71 seeking to punish the respondents for disobeying the order dated 15.02.2011 passed by this Court in M.P. (MD) No.1 of 2011 in W.A. (MD) No.201 of 2011. MP(MD)No. 1 of 2011: Petition praying that the High Court will be pleased to stay the order passed by the 6th Respondent in Na.Ka. No. 543 6/W4/E2/10 dated: 12.10.2010 pending disposal of the WA.No. 201 OF 2011. For appelalnt in writ appeal Mr. C. Selvaraju, Senior Counsel and petitioner in Cont.Petn. for M/s. C.S. Associates For RR 1-4 & 6 in W.A. & Mr. R. Janakiramulu, RR 1 & 3 in Cont. Petition Spl. Govt. Pleader For R5 in writ appeal & Mr. R. Viduthalai, Sr. Counsel R2 in Cont. Petition for Mr. V. Jayachandran JUDGMENT (Judgment of the Court was delivered by K. SUGUNA, J.) The writ appeal is filed as against the order dated 04.02.2011 passed in W.P. No.12784 of 2010. 2. The above said writ petition was originally filed seeking a writ of mandamus restraining the respondents 3 and 4 therein from approving the School Committee Secretaryship / Correspondentship as claimed by the fifth respondent therein. However, subsequently, a modified relief was sought to quash the order dated 12.10.2010 passed by the sixth respondent in the writ petition, viz., the Joint Director of School Education (Higher Secondary). The said writ petition was dismissed by order dated 04.02.2011. As against the same, this writ appeal is filed by the petitioner in the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 3 3. At the stage of admission of the writ appeal on 15.02.2011, the appellant/writ petitioner got the benefit of the interim order in the writ appeal. Subsequently, the matter was posted for hearing on 15.03.2011, 22.03.2011, and 24.03.2011 and the matter was also heard at length by this Bench and after the arguments were over, on 29.03.2011, the matter was directed to be posted for judgment on 05.04.2011. But, prior to that, the learned counsel for the appellant/writ petitioner sought permission to withdraw the writ appeal. Consequently, the writ appeal was listed on 05.04.2011 under the caption "for withdrawal". However, on 05.04.2011, when the matter was taken up, the learned Senior Counsel appearing for the fifth respondent raised his objection for the withdrawal of the writ appeal. Consequently, the matter has been posted today to decide as to whether the withdrawal of the writ appeal shall be permitted or not. 4. According to the learned Senior Counsel appearing for the appellant/writ petitioner, since in the order dated 09.06.2010 passed by the Principal Seat of this Court in W.P. Nos.12209 of 2008, 6141 and 13865 of 2009, the appellant/writ petitioner was directed to approach the Civil Court and since even as per the judgments of various Division Benches, when there is a dispute with regard to the educational agency, the matter has to be decided only by the Civil Court, the appellant/writ petitioner had approached the Civil Court. In support of his contention, the learned Senior Counsel appearing for the appellant/writ petitioner has relied on paragraph nos.7, 9 and 10 of the judgment reported in AIR 1963 SC 1566, Bijayananda Patnaik vs. Satrughna Sahu and Others which read as follows: "7. Let us therefore see what powers the High Court has in the matter of withdrawal of an appeal from an original decree before it and what procedure it has to follow in that behalf. The provisions in the Code relating to withdrawal of suits are to be found in O.23, R.I. Sub-rule (i) thereof lays down that at any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. Sub-rule (2) provides that "where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other 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 abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim." We have already said that sub-rule (1) gives absolute power to the plaintiff to withdraw his suit or abandon part of his claim against all or any of the defendants, and where an application for withdrawal of a suit is made under O.23, R.1(1), the Court has to allow that application and the suit stands withdrawn. It is only under sub-rule (2) where a suit is not being withdrawn absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for https://hcservices.ecourts.gov.in/hcservices/ 4 the same subject matter that the permission of the court for such withdrawal is necessary. The provisions of O.23, R.1(1) and (3) also apply in the same manner to withdrawal of appeals. In Kalyan Singh v. Rahmu ILR 23 All 130 it was held that where no objection had been filed by the respondent, the appellant had an absolute right to withdraw his appeal at any time before judgment. This view was followed by the Allahabad High Court in Kanhaya Lal vs. Partap Chand, 29 All LJ 232 where it was held that having regard to O.23, R.1(1) and S.107(2) of the Code of Civil Procedure, where no cross objection has been filed by the respondent, an appellant has the right to withdraw his appeal unconditionally, his only liability being to pay costs. In Dhondo Narayan Shiralkar v. Annaji Pandurang Kokanur, ILR (1939) Bom: 66 (AIR 1938 Bom 442) it was held that: "an appellant is entitled as of right to withdraw his appeal, provided the respondent has not acquired any interest thereunder." There was however difference between the Allahabad and Bombay High Courts as to whether S.107(2) of the Code of Civil Procedure would help an appellant in such a case. It is unnecessary for our present purpose to decide whether the absolute right of the appellant to withdraw an appeal unconditionally flows from S.107 (2) or is an inherent right of the appellant on the analogy of O.23, R.1(1). But there can be no doubt that an appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the court, it has to grant it. The difficulty arising out of any cross-objection under which the respondent might have acquired an interest as pointed out by the Bombay High Court, no longer remains in view of O.41 R.22(4) which now permits the cross-objection to be heard even though the appeal is withdrawn. Therefore when the High Court is hearing an appeal from on original decree and an application is made to it to withdraw the appeal unconditionally, it must permit such withdrawal subject to costs and has no power to say that it will not permit the appeal to be withdrawn and will go on with the hearing of the appeal. The power of the High Court under S.116A (2) when hearing an appeal from an election petitioner is the same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no express provision to the contrary in the matter of withdrawal of an appeal in the Act. Therefore when an appellant under S.116-A makes an application for an unconditional withdrawal of the appeal, the power of the High Court consistently with its power in an appeal from an original decree, is to allow such withdrawal, and it cannot say that it will not permit the appeal to be withdrawn. We are therefore of opinion that the High Court was in error in importing the principles of Ss.109 and 110 of the Act which deal only with the withdrawal of election petitions and not with the withdrawal of appeals. 9. We are therefore of opinion that the High Court should https://hcservices.ecourts.gov.in/hcservices/ 5 have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this connection need not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the High Court could not refuse such withdrawal. 10. In the view we have taken on the first question raised before us, it is not necessary to deal with the second question, though we may add that as at present advised it seem to us that the High Court was in error in treating the application for withdrawal of the appeal as if it were an application for withdrawal of an election petition under S.109 and referring the matter to the election tribunal. Even if the High Court had power to refuse an application for withdrawal of an appeal, the proper course for the High Court would be to consider all that is required by S.110 itself. However in view of our decision on the first question we need not pursue the point further." 5. However, according to the learned Senior Counsel appearing for the fifth respondent, after the writ appeal was posted for judgment, on 31.03.2011, the appellant/writ petitioner had got an interim order in the said suit; since this request for withdrawal is made after lengthy arguments and after the matter was posted for judgment, the appellant/writ petitioner should not be permitted to withdraw the writ appeal. In support of this contention, the learned Senior Counsel appearing for the appellant/writ petitioner has relied on paragraph nos.13 and 17 of the judgment reported in 2000 3 CTC 558, K.S. Bhoopathy and Others vs. Kokila and others which read as under: "13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non suit. Therefore on principle an application by a plaintiff under Sub-rule 3 cannot be treated on par with an application by him in exercise of the absolute liberty given to him under Sub-rule 1. In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in Sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of Sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. Clause (b) of Sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code https://hcservices.ecourts.gov.in/hcservices/ 6 on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or courts below. Grant of permission for Withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. 17. From the above it appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts an circumstances of the case as emanating from the judgments of the trial court and the first appellate court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate court they took recourse of Order XXIII Rule 1(3) CPC and filed the application for withdrawal of the suit with leave to file fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of be defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied by merely stating that grant of permission will not prejudice the defendants. In case such https://hcservices.ecourts.gov.in/hcservices/ 7 permission is granted at appellate or second appellate stage prejudice to defendant is writ large as he loses the benefit of the decision in his favour in the lower court." and also paragraph no.5 of the judgment of the Hon'ble Apex Court reported in 2009 3 MLJ 300 (SC), Abhimanyoo Ram vs. State of U.P. and another which reads as under: "Any attempt by a litigant to retain the benefit of the interim order by avoiding final adjudication, requires to be deprecated. In fact, it requires to be dealt with sternly. Courts should bestow caution while dismissing cases where interim relief had been granted, as not pressed or as withdrawn. The Courts cannot proceed on the assumption that all concerned would know about the legal consequences of dismissal and therefore, it is not necessary to make any order in regard to the interim relief already granted. Even though the legal effect of dismissal on withdrawal, is vacation of the interim order, the concerned respondents not being aware of the legal consequences, will not take consequential action but continue the benefit extended to the petitioner by the interim order, unless there is a specific direction spelling out the consequences. Sometimes, the concerned departmental officials, on account of collusion with the petitioners who had obtained the interim relief, will not withdraw or reverse the benefit granted to the petitioner in pursuance of the interim order, when the petition is withdrawn or dismissed as not pressed. Therefore, appropriate consequential directions cancelling or vacating the interim order should be passed so as to restore status quo ante. In cases where the prayer for dismissal (as not pressed or withdrawn) is made even before the respondent is served, then the order vacating the interim order should be communicated to the authority against whom the interim order was issued, so that any benefit extended as a consequence of the interim order can be withdrawn or reversed. The only exception is where the respondents agree for the continuance of the interim order as a final relief, or agree that the benefits of the interim order already granted need not be disturbed, in which event, the Court should record such submission and pass appropriate consequential orders." As per paragraph no.5 of the judgment reported in 2009 3 MLJ 300 which has been extracted above, according to the learned Senior Counsel appearing for the fifth respondent, in the event of the appellant/writ petitioner being permitted to withdraw the writ appeal, the finding rendered in favour of the fifth respondent in the writ appeal will get obliterated. 6. The learned Senior Counsel appearing for the fifth respondent has further submitted that after the arguments were over and when the matter was posted for judgment on 05.04.2011, on 31.03.2011, the appellant/writ petitioner has got an order of injunction from the Civil Court; hence, the appellant/writ petitioner wants to withdraw the writ appeal; besides, in view of the interim order granted in this writ appeal, the fifth respondent was prevented from enjoying the fruits of the order dated 12.10.2010; apart from this, even as per the order which had been https://hcservices.ecourts.gov.in/hcservices/ 8 initially passed, the term of office of the fifth respondent is from 25.01.2009 to 25.01.2012 and by virtue of the interim order got by the appellant/writ petitioner in the writ appeal, the fifth respondent is prevented from enjoying the fruits of the said order; when the judgment was reserved, since an order of injunction has been secured by the appellant/writ petitioner by moving the Civil Court, the finding given in the writ petition by the learned Single Judge becomes nullified, consequently, the fifth respondent could not enjoy either the order of the learned Single Judge or the order passed by the departmental authorities; that apart, based on the conduct of parties, the writ appeal should not be permitted to be withdrawn; besides, after arguing at length and wasting the time of the Court, if withdrawal of the writ appeal is permitted, that will amount to permitting the parties to abuse the process of Court. 7. The learned Senior Counsel appearing for the fifth respondent has further submitted that the learned Single Judge, while disposing of the writ petition, had given two findings in favour of the fifth respondent in paragraph nos.13, 15 and 16 of the order dated 04.02.2011 and the same read as under: "13. However, this Court is not inclined to go into the rival contentions made by the petitioner and the fifth respondent. It is seen that the sixth respondent had accepted the Correspondentship of the fifth respondent on the basis of Form-VII taken on file by the District Registrar. Ultimately if any party is aggrieved either by the acceptance of Form VII or by the consequential recognition by the educational department, on their right in the educational agency, they will have to file only a suit and such issue cannot be decided by this Court. 15. Subsequently, a division bench in the subsequent round of litigation in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee Karisal through its Secretary vs. the District Registrar Cheranmahadevi, Tirunelveli District and others reported in 2008 (4) L.W. 1080 in paragraph 41 had observed as follows: "41. ...Once Form VII had been accepted, even though it did not have the effect of finally deciding about the validity or otherwise of any election, for the purpose of the Act, it should be considered as final, so that other consequences such as recognition of the educational authorities would follow, subject of course to any decision of a competent Civil Court. In the absence of any decision of the Civil Court, final or even interlocutory, the educational authorities were not expected to go behind such Form VII, which had been taken on record." 16. In the present case, the order passed by the Department was earlier challenged by the very same petitioner which was rejected by this court. Though the petitioner had https://hcservices.ecourts.gov.in/hcservices/ 9 claimed that he had filed a writ appeal, but, however, by way of abundant caution he had moved the Sub Court. Even in the reply affidavit, no such details were given regarding the appeal filed by him. Therefore, it has to be presumed that the earlier order passed by this Court has become final. In any event, he has filed a civil suit in respect of the very same cause of action. Therefore, the petitioner will have to pursue the suit which is now at present pending before the Sub Court, Theni." and if the appellant/writ petitioner is permitted to withdraw the writ appeal, the finding given by the learned Single Judge will get obliterated. 8. We have considered the above submissions made by the respective learned Senior Counsel. 9. Though the writ appeal is filed as against the order dated 04.02.2011 passed in W.P. (MD) No.12784 of 2010, now, the issue has come to a narrow compass, viz., whether the appellant/writ petitioner can be permitted to withdraw the writ appeal or not. 10. The main objection