IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16311 of 2011 Sunder Ravidas & Ors Versus Sakalram @ Sakal Ravidas & Ors ----------- 02. 22.09.2011 Heard the learned counsel for the petitioners. From perusal of the impugned order dated 12.05.2009 passed by 1st Additional District Judge, Katihar in Title Appeal No.28 of 1996, it appears that the appellant appeared before the lower Appellate Court and submitted that he does not want to proceed with the appeal and accordingly, he prayed to dismiss the appeal. Therefore, the T.A. no.28/96 was dismissed. It is well settled principles of law that so far the provisions as contained in Order 23 Rule 1 of the C.P.C. is concerned, it is applicable in cases of appeal also as has been held by the Apex Court in A.I.R. 1963 1566(Bijayananda Patnaik Vs. Satrughna Sahu and others. In a reported decision (2005) 1 BLJR (Pat) 323 (Jaya Shankar Singh Vs. Champa Devi and others), this Court has held that the plaintiff had an unqualified right to withdraw a suit simplicitor as per provisions of Order 23 Rule 1 Sub Rule 1 C.P.C. which contains no provision which require the Court to refuse permission to withdraw the suit and compel the plaintiff to proceed with it especially when no set up has been claimed by the defendant nor any counter claim has been raised by them. 2 From perusal of the impugned order, in the present case, it appears that the appellant physically appeared before the Court below and submitted that he is not willing to proceed with the appeal and, therefore, the appeal may be dismissed. In such circumstances, the Court had no option but to allow the prayer of the appellant and, therefore, the learned Court below has rightly dismissed the appeal. The learned counsel for the petitioners submitted that applications filed by the petitioners were pending and the learned Court below without deciding the application filed by the petitioners dismissed the appeal. The appellant had not filed any application for dismissal. So far this submission is concerned also, I find no force because admittedly, in the present case, there is no set up or counter claim made by the defendants. There is no provision of law which can compel a party to carry on litigation. The natural corollary of Order 23 Rule 1 C.P.C. is to grant permission to withdraw the suit. Here, the appellant himself submitted before the Court that he is not desirous of proceeding with the appeal and prayed that the appeal may be dismissed. In such circumstances, the Court had no jurisdiction to compel him to carry on the litigation. Further, merely because some applications have been filed by the petitioner, in my opinion, it is not bar to give permission or dismiss the appeal by the Court. 3 So far the submission that the appellant has not filed any application is concerned, in A.I.R. 2003 Bombay 238 it has been held that as soon as the plaintiff inform the Court or communicate his intention to the Court to withdraw the suit it is complete and withdrawal is not dependent on the Court’s order. Therefore, filing of application is not condition precedent for giving permission to withdraw the appeal or dismiss appeal by the Court. The learned counsel next submitted that the appellant prayed before the Lower Appellate Court to dismiss the appeal contending that there has been compromise between the parties outside the Court but in fact, there was no compromise between the petitioner and the appellant, therefore, the appeal could not have been dismissed. So far this submission is concerned also, I find no force because the reason for withdrawing or dismissing the appeal is not relevant for giving permission to withdraw unconditionally or to dismiss the appeal. Whatever reason might be there but that reason is for the appellant but in my opinion, it is not relevant for consideration of the Court while dismissing the appeal on the prayer of the appellant. Here, on the prayer of the appellant who appear physically before the Appellate Court and prayed for dismissal of the appeal on the ground that he will not prosecute the same. Now, therefore, the trial court judgment and decree remain intact which the appellant has challenged. 4 In view of the above settled principles of law, it cannot be said that the learned Court below exercised a jurisdiction not vested in it by law or that it exercised the jurisdiction in a manner unknown to any law. It cannot also be said that the learned Court below overstepped or crossed the limits of its jurisdiction or acted in flagrant disregard of law or the rules of procedure. The supervisory jurisdiction is exercised for keeping the Subordinate Courts within the bounds of their jurisdiction and moreover, this supervisory jurisdiction is not available to either correct mere error of fact or of law unless the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. In such view of the matter, in supervisory jurisdiction under Article 227 of the Constitution of India this Court cannot interfere with the impugned order. Accordingly, this writ application is dismissed. Saurabh/A.F.R. ( Mungeshwar Sahoo, J.)