1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 661 OF 2011 Jai Bajrangham Mandal ...Applicant Versus M/s.Ashish Builders & Others ...Respondents Mr.Shrishail Sakhare for the Applicant CORAM:- R.Y.GANOO, J. DATED:- 13th OCTOBER, 2011. P.C. 1. The applicant filed Short Cause Suit No.3731 of 2007 in the City Civil Court at Bombay. The applicant, along with his Advocate appeared before the learned Judge of the City Civil Court, on 6.8.2010 and on that day the applicant and his Advocate applied for withdrawal of the suit. The suit came to be withdrawn on account of the said request. Order dated 6.8.2010 is produced below “President of Plaintiff Mandal and Mr. Ramashankar Jagdish Pande present. Advocate Alka Katiyar h/f. A.M.Saraogi for plaintiff 2 present. Advocate Manoj Mhambrey for defendant present. President of plaintiff and Advocate for plaintiff submitted that they want to withdraw the suit unconditionally. On the submission of the President of plaintiff Mandal and the submission of Advocate, the suit is disposed of being withdrawn. No order as to costs. All the notice of motions and chamber summons pending in this matter shall stand disposed of.” 2. After this order, the petitioner filed notice of motion praying that the order dated 6.8.2010 be set aside. The learned Judge of the City Civil Court considered the draft motion and after giving hearing to the learned Advocate for the applicant came to the conclusion that leave to take out motion cannot be granted and he passed an order dated 18.7.2011 thereby refusing to grant leave. The text of the said order is as follows: “Adv. K.R.Yadav for plaintiff present. Adv. Mhambrey for defendant nos.1 and 3 present. Heard Learned Advocates. Roznama dt. 6.8.2010 clearly indicates that the suit was withdrawn by the President of plaintiff. 3 On that date Advocate for the plaintiff was also present and accordingly the suit was disposed off. Now the plaintiff wants to take out this Notice of Motion for restoration of the suit. There is no any provision for taking up such Notice of Motion for restoration of the suit which is already withdrawn. No leave to register such Notice of Motion can be given under Section 151 C.P.C. Hence, no leave can be granted to register notice of motion, accordingly, it is disposed of. Matter is already withdrawn on 06.08.2010.” 3. This petition is filed challenging above order dated 18.7.2011. As the petition was called out, learned Advocate for the applicant, in the first place submitted that the view taken by the learned Judge of the City Civil Court is contrary to the judgment delivered by the Supreme Court in the case of Rajendra Prasad Gupta vs. Prakash Chandra Mishra & Ors. Reported in 2011 (4) Bom. C. R. 373. Learned Advocate Mr. Sakhare drew my attention to paragraph 3 of the said judgment and submitted that the facts of the case cited by him are similar to the facts covered by the present application and therefore the impugned order should be set aside. Insofar as this 4 submission is concerned, I am not inclined to accept this submission. Reliance placed on the aforesaid judgment in the case of Rajendra Prasad Gupta is totally misconceived. In the judgment delivered by the Supreme Court in case of Rajendra Prasad Gupta, nodoubt, before the trial court application was filed for withdrawal of the suit, however before a formal order could be passed, plaintiff in the said suit thought of withdrawing the said application. It appears from the said paragraph 3 that the second application for withdrawal of the earlier application was dismissed. The High Court took a view that once an application for withdrawal of the suit is tendered, it amounts to withdrawal of the suit. This view of the High Court has been set aside by the judgment delivered by the Supreme Court. Reading of the judgment would clearly go to show that till such time the order of withdrawal of the suit is not passed, it would be open for the plaintiff to request the court as to not to pass an order of withdrawal. It is abundantly clear from the facts of the case covered by the suit concerning this petition that at the time when the suit was withdrawn the plaintiff i.e. the applicant and his Advocate were present before the Court. They made an application for withdrawal of the suit and on the said application the learned Judge of the City Civil Court 5 immediately passed an order of withdrawal and it was granted unconditionally. Hence the event of making an application for withdrawal of the suit and passing the order took place one after other. This means, on 6.8.2010 the request for withdrawal of the suit was granted and the suit stood withdrawn and on account of the order passed by the learned Judge. Hence, I am inclined to observe that the judgment relied upon by learned Advocate Mr.Sakhare in the case of Rajendra Prasad Gupta is not at all applicable. 4. Learned Advocate Mr. Sakhare submitted that looking to the various other litigations it was just impossible for the plaintiff to withdraw the suit and therefore the court should look into it. In my view, it is not possible to accept this submission. The roznama dated 6.8.2010 is abundantly clear and the mind of the plaintiff is absolutely made out that he wanted to withdraw the suit. It is not as if the applicant was alone in the court. The applicant was duly represented by the Advocate and the name of Advocate Mrs. Alka Katiyar holding for A.M.Saraogi for the plaintiff is appearing in the roznama. I am not prepared to disbelieve the roznama passed by the learned Judge. All this will go to show that the Advocate appearing on behalf of the 6 applicant-plaintiff and in the present case applicant, requested for withdrawal of the suit and considering the request, the learned Judge allowed the suit to be withdrawn. The learned Judge disposed of the notice of motion and the Chamber Summons. Surely passing of this order must have taken atleast 3-4 minutes. After the learned Judge was informed about the request to withdraw the suit, it can’t lie in the mouth of the applicant that he was not aware about the consequences. Surely, when he was present in the court with this Advocate when the application for withdrawal was made, it will be taken that he knows the consequences. It is not as if the applicant is espousing his personal case, the applicant is espousing the case on behalf of the plaintiff, who is Jai Bajrangdham Mandal. If this be so, more responsibility was on the shoulder of the applicant to take firm decision and these request for withdrawal of the suit or otherwise. In my view, aforesaid submission is required to be rejected. 5. It was sought to be submitted that there was no pursis stating therein that suit be withdrawn. 6. In a Court, for every request which is made, there is no need to make 7 a pursis in writing. If oral application is made, and if the court understands the meaning of the said application, the court is empowered to pass an order it can pass the order. 7. The applicant thereafter filed notice of motion seeking revocation of the order dated 6.8.2010. The learned Judge of the City Civil Court has observed that there is no provision in law for setting aside the said order. The said order as quoted above. I am inclined to observe that the learned Judge has taken correct view of the matter and the request of the plaintiff to press in service the provisions of Section 151 of CPC was rightly rejected. For these reasons no interference is required in the impugned order. The application is required to be dismissed. In my view, it is necessary to saddle the applicant with costs. 8. In the facts and circumstances of the case, the applicant is directed to pay a sum of Rs.2000/- (Rupees Two Thousand Only) as and by way of cost to the Bombay High Court Legal Aid Committee. Applicant to pay the cost and produce the receipt in the office. Cost be paid on or before 9.11.2011 and the receipt be produced in the office on or 8 before 15.11.2011. 9. After the aforesaid order is passed, the learned Advocate Mr. Sakhare for petitioner made a fervent request to reduce the costs. Looking to the request I now order the petitioner to pay costs of Rs.1000. Costs be paid to the Bombay High Court Legal Aid Committee. Applicant to pay costs on or before 9.11.2011 and produce receipt in the office before 15.11.2011. (R.Y.GANOO, J.)