IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.483 OF 2007 NO.483 OF 2007 NO.483 OF 2007 inin in SUIT SUIT SUIT NO.700 OF 1972 NO.700 OF 1972 NO.700 OF 1972 Surender Singh Kohli ... Appellant (Orig.Plaintiff) Vs. The Municipal Corporation of Gr. Bombay & ors ... Respondents (Orig.Defendants) Mr.Shrikant Doijode i/b M/s Doijode & Associates for Appellant Mr.C.D.Mehta i/b Dhru Liladhar & Co for Respondent no.5 Mr.Gaurav Joshi i/b Omkar Varange for Respondent no.6 Mr.K.N.Gaikwad for BMC (Respondent no.1) CORAM CORAM CORAM : SMT.RANJANA DESAI AND : SMT.RANJANA DESAI AND : SMT.RANJANA DESAI AND K.K.TATED, K.K.TATED, K.K.TATED, JJ JJ JJ DATED: DATED: DATED: 18th 18th 18th December, 2008 December, 2008 December, 2008 JUDGMENT JUDGMENT JUDGMENT ( Per K.K.Tated, J ) ( Per K.K.Tated, J ) ( Per K.K.Tated, J ) 1. In the instant matter, advocate appearing on behalf of the appellant by his praecipe dated 21st November, 2008 prays for withdrawal of the appeal. Pursuant to the said praecipe, the matter appeared on board for withdrawal and at that time advocate appearing on behalf of respondent no. 6 opposed the same on the ground that it will affect their rights in the instant matter. Advocate appearing on behalf of the respondent no.6 stated that they preferred Chamber Summons No.1701 of 2008 for transposing the respondent no. 6 as appellant and the present appellant as the respondent in the memo of appeal and for other consequential 2 reliefs. In order to unfold the controversy, it is necessary to state a few facts of the above mentioned matter. 2. The appellant (original plaintiff) filed Suit No.700 of 1972 in this Court for a declaration that the auction sale of the suit property is void, bad, illegal in- effective and not binding on the plaintiff. The said suit was dismissed by the Single Judge by judgment and decree dated 6th June, 2007. It is important to state at this stage that before the Single Judge the original defendant nos. 6 to 9 neither filed their vakalatnama nor their written statement. Not only that nobody appeared before the Single Judge but, the judgment specifically mentions as follows: " None for defendant nos. 6 to 9." At the time of dismissing the said suit the learned Single Judge in para 23 while deciding issue no.3 recorded that " The other brothers and sisters i.e. defendant nos. 6 to 9 were not examined in the present suit. No evidence is led by them. They did not even join the plaintiff in filing the suit. None of them filed even the vakalatnama. The defendant nos. 6 to 9 in no manner raised any challenge to the demand notice or to auction, or any action of the BMC. These defendants were fully aware of the 3 tax arrears. The plaintiff was not residing in the said premises and admittedly Mr.Ajit Singh was the owner of the said property as per BMC records and not plaintiff or the defendant nos. 6 to 9." 3. Being aggrieved by the said judgment and decree dated 6th June, 2007 passed by the Single Judge in the Suit No.700 of 1972 the appellant preferred the above mentioned appeal on 6th July 2007. The present appeal came to be admitted by an order dated 20th July 2007. 4. The advocate appearing on behalf of the appellant filed a praecipe dated 21st November, 2008 for withdrawal of the appeal unconditionally. The application for withdrawal of appeal by the appellant through a praecipe is under Order 23 Rule 1 of the Code of Civil Procedure. Order 23 Rule 1 of the Code of Civil Procedure reads as under : 1. Withdrawal of suit or abandonment of part of claim: (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 12 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned 4 without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also if the minor or such other persons represented by a pleader, by a certificate, of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied, - (a) that a suit must fail by reason of some formal defect, or (b) 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, it may on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule l shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub rule (1) or to withdraw under sub-rule (3) any suit or part of a claim without the consent of the other plaintiffs. 5. A perusal of the provisions of Order 23 Rule 1 of the Code of Civil Procedure reproduced above shows that if the plaintiff wants to give up or 5 abandon a part of the claim made in the suit he can do so at any time and it is not necessary for him to seek permission of the court to do so. Leave of the court for abandoning a part of the claim becomes necessary if the plaintiff intends to institute a fresh suit for recovery of the claim which is being abandoned in the suit which is pending before the court. If the plaintiff does not desire to institute a fresh suit for the subject matter of the suit or part of the claim then the plaintiff can abandon the suit or abandon part of the claim made in the suit without seeking permission or leave of the court. It is further clear that when the plaintiff abandons a part of the claim made in the suit without seeking leave of the court he cannot institute a fresh suit for that claim and he also becomes liable for such costs as the Court may impose. In other words, Rule 1 of Order 23 of the Code of Civil Procedure confers on the plaintiff an absolute right to give up a part of his claim or withdraw a suit at any time if it is not going to affect the interest of the defendants and/or there is no counter claim in the said suit. Even if counter claim is there, the plaintiff can withdraw his suit and the counter claim can proceed independently. Therefore, a mere statement made by the plaintiff 6 before the court that he desires to abandon part of the claim and/or he wants to withdraw the entire suit at any stage would be enough. It is further to be seen here that such a right is given to the plaintiff by ensuring that the plaintiff while abandoning a part of his claim and/or withdrawing a suit causes no prejudice to the defendants. For that purpose a provision has been made that if the plaintiff proposes to institute a fresh suit for the abandoned claim then he has to seek leave of the court. It is obvious that when the plaintiff applies for such a leave the court will decide it after granting an opportunity of being heard to the defendants because grant of such a leave to the plaintiff may result in causing prejudice to the interest of the defendants. It is further to be seen here that the provisions of Rule 1 of Order 23 of the Code of Civil Procedure do not contemplate even an application being made by the plaintiff when the plaintiff wants to abandon a part of his claim and/or to withdraw the entire suit without any leave to institute a fresh suit for the same purpose. 6. In the instant matter, the appellant (original plaintiff) through his advocate filed a praecipe 7 dated 21st November, 2008 for withdrawing the appeal unconditionally. Our High Court in the matter of MAHADKAR AGENCY AND ANR VS.PADMAKAR MAHADKAR AGENCY AND ANR VS.PADMAKAR MAHADKAR AGENCY AND ANR VS.PADMAKAR ARCHANNA ARCHANNA ARCHANNA SHETTY reported in AIR 2003 BOMBAY 136 SHETTY reported in AIR 2003 BOMBAY 136 SHETTY reported in AIR 2003 BOMBAY 136 held that for withdrawal of the suit under Order 23 Rule 1 a speaking order is not necessary and the plaintiff has a right to withdraw the suit at any stage. Para 12 of the said judgment reads as under: " Once it is established from the facts and the circumstances of the case, that the plaintiffs can abandon or withdraw the suit, such withdrawal being unconditional, the question of rejection of such request does not arise and in the absence of any adjucation of any rights of the parties, the question of passing any speaking order for allowing to withdraw simpliciter does not arise. Hence, merely the order allowing the withdrawal simpliciter does not disclose any reason for passing such order it cannot be said that the same has been passed either by illegal or improper exercise of jurisdiction so as to warrant interference in revisional jurisiction. That part, it cannot be said that the impugned order is totally a non-speaking order as such. It does disclose reason for allowing the respondent to withdraw the suit. It clearly stated that considering averment in para 8 of the application for withdrawal, the plaintiff has been allowed to withdraw the suit. The contents of para 8 of the application disclose that the respondent-plaintiff wants to file a fresh suit for various reliefs on a different cause of action and by way of abundant caution the respondent had sought permission to withdraw the suit with liberty to file a fresh suit. Once the party wants to file a suit on the basis of a cause of action different from the one in the suit which is to be 8 withdrawn then the question of leave or liberty to file a fresh suit does not arise at all and hence the trial Court has rightly allowed the respondent to withdraw the suit simpliciter. " Therefore, it is clear that the appellant has an unqualified right to withdraw the appeal simplicitor as per provisions of Order 23 Rule 1 of the Code of Civil Procedure. Sub-rule 1 of order 23 of the Code of Civil Procedure which contains no provisions which requires the court to refuse permission to withdraw the appeal and/or suit and compel the plaintiff to proceed with it especially when no set off has been claimed by the defendants nor any counter claim has been raised by them. Therefore, the appellant has a right to withdraw the appeal at any time. 7. The advocate appearing on behalf of the respondent no. 6 objects to the withdrawal of the appeal on the ground that the appellant/original plaintiff filed the suit on behalf of the HUF. He pointed out from the plaint that the appellant specifically stated that the suit property is the Joint Hindu Family ancestral property of the plaintiff and defendant nos. 6 to 9. It is also stated in the plaint that after the death of their father in 1965 the suit property devolved on the 9 defendant nos.6,7,8 and 9 and the plaintiff as per the Hindu law. The advocate appearing on behalf of the respondent no. 6 pointed out following paragraphs of the plaint to justify that the plaintiff filed the suit on behalf of the HUF: 4. The plaintiff states that the suit property is the joint hindu family ancestral proprty of the plaintiff and the defendant 6 to 9. The father of the plaintiff having died in the year 1965 the said property devolves on the defendants 6,7,8 and 9 and the plaintiff according to Hindu law. 7. The plaintiff states that the auction of the suit property without proper notice of demand on all the heirs is bad in law and not binding on this plaintiff and the defendant 6,7,8 and 9. The plaintiff further states that no notice of the said auction was given to the defendants 6,7,8,and 9. The plaintiff states that defendants 1 and 4 could have with little diligence found the address of the plaintiff and the other defendant 2 whose interest is prejudically affected by the said auction and served them with the notice of auction. The plaintiff further says that the auction sale without proper notice is bad, illegal, ineffective and not binding on the plaintiff and the other defendants 6 to 9 herein. The plaintiff states that the said auction proceedings are liable to be quashed as illegal, bad, ineffective and as not binding on the plaintiff and defendants 6 to 9 herein. Therefore the advocate appearing on behalf of respondent no. 6 opposed the application/ precipe dated 21st November, 2008 preferred by the appellant for withdrawal of the appeal. It is not open to defendant 6 to raise this contention. As 10 already stated by us defendants nos. 6 to 9 neither filed their vakalatnama nor their written statement. They did not appear before learned Single Judge and this is reflected in the judgment. We have already quoted paragraph 23 of learneed Single Judge’s order where learned Single Judge has observed that defendant 6 to 9 did not join the plaintiff in filing the suit, they did not lead any evidence and they did not raise any objection to the demand notice to the auction or any action of the B.M.C. Such defendants cannot now be allowed to oppose withdrawal of the suit on the ground that the plaintiff has averred in the plaint that the suit property is Joint Hindu Family Property. Nothing prevented them from cooperating with the plaintiff and prosecuting the suit. 8. Considering the facts as stated herein above and considering Order 23 Rule 1 of the Code of Civil Procedure, the respondent no. 6 cannot oppose the application/praecipe dated 21st November, 2008 filed by the appellant for withdrawal. In any case as stated hereinabove, the appellant have a right to withdraw the appeal at any stage. In the abovementioned facts and circumstances, we allow the appellant to withdraw 11 the appeal unconditionally with no order as to costs as per his application/praecipe dated 21st November, 2008. Respondent no.6 is at liberty to take out appropriate proceeding to safeguard his interest if any in law. { K.K.Tated, J } K.K.Tated, J } K.K.Tated, J } { Smt Ranjana Desai, J } Smt Ranjana Desai, J } Smt Ranjana Desai, J }