ANIL KUMAR SINGHversusV!JAY PAL SINGH & ORS.

                            (2017] l l S.C.R. 74



A                         ANIL KUMAR SINGH
                                       v.
                       V!JAY PAL SINGH & ORS.
                      (Civil App~al No. 20007 of 2017)
B                          NOVEMBER 30, 2017
       [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
          Code of Civil Procedure. 1908:
        Order XX! II, 1: I - Application unda - Seeking permission ro
c withdraw suit for injunction - Allowed by Trial court and affirmed
  by Revision Court - 111 writ petition by defendant, High Court set
  aside the orders of trial court and revision court and directed the
  plaintiff to put the defendant in possession of the suit land - On
  appeal. held: The writ petition was confined to rhe question of
  withdrawal of the suit and not of grant of injunction - The High
D
  Court commitled jurisdictional error by going beyond the scope of
  the writ petition having travelled in the issue relating lo gra/1/ of
  injunction in respecr of the suit land - Trial Court and Revision
  Courr were j11stified in permitting the plaimijf to withdraw the suit -
  High Court was not right is setting aside their ordei:y and directing
E to place defendant No. I in possession of the sui1 land.
          Allowing the appeal, the Court
          HELD: l. When the plaintiff files an application under Order
    XXIII Ruic 1 CPC and prays for permission to withdraw the suit,
    whether in full or part, he is always at liberty to do so and in such
F   case, the defendant has no right to raise any objection to such
    prayer being made by the plaintiff except to ask for payment of
    the cost to him by the plaintiff as provided in sub-rule (4). The
    reason is that while making a prayer to withdraw the suit under
    Rule 1(1), Hie plaintiff does not ask for any leave to file a fresh
G   suit on the same subject matter. A mere withdrawal of the suit
    without asking for anything more can, therefore, be always
    permitted. (Paras 24, 251181-C-D]
          2. However, when the plaintiff applies for withdrawal of the
    suit along \Yilh a prayer to grant him permission to file a fresh
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                                  74
      ANIL KUMAR SINGH v. V!JAY PAL SINGH & ORS.                          75



suit on the same subject matter as provided in sub-rule (3) of            A
Ruic 1 then in such event, the defendant can object to such prayer
made by the plaintiff. In such event, it is for the Court to decide
as to whether the permission to seek withdrawal of the suit should
be granted to the plaintiff and, if so, on what terms as provided in
sub-rule (3) of Ruic I. [Para 26][81-E-F[
                                                                          B
      3. In the present case, since the appellant had applied for
withdrawal of the suit under Order XXlll Ruic 1, the Trial Court
was justified in permitting withdrawal of the suit subject to the
appellant paying cost of Rs.350/- to respondent No.I (defendant
No.I). Such order was in conformity with sub-rule (3) of Ruic 1
and was rightly upheld by the Revision Court. [Para 27]181-C-H]           c
      4. The High Court committed jurisdictional error in
allowing the defendant's writ petition by finding fault in the orders
of the Trial Court and Revision Court and giving directions to
the plaintiff to place defendant No.l in possession of the suit land
without there being any basis whatsoever. The High Court should           D
have seen that the scope of writ petition was confined to examine
the question as to whether the Trial Court and Revision Court
were justified in allowing the application filed hy the plaintiff under
Order X.XIJI Ruic I CPC and to decide this question, the High
Court should have confined its inquiry to examine as to whether           E
the requirements of Order XXIII Ruic l were complied with or
not but not beyond it. There was, therefore, no justification on
the part of the High Court to have travelled in the issues relating
to the grant of injunction in relation to the suit land and give
direction to the appellant (plaintiff) to place respondent No. 1 in
possession of the suit land. [Paras 28, 29 and 30][82-A-D]                F

      5. The High Court should have seen that the issue of grant
of injunction was not the subject matter of the writ petition and,
therefore, it had nothing to do with the question of grant of
injunction and secondly, the withdrawal of a suit was governed by
Order XXIU Ruic 1 CPC whereas the injunction was governed                 G
by Order XXXIX Rules 1 and 2 CPC. Both operate in different
spheres. That apart, the defendant did not challenge the ex-parte
grant of injunction order in appeal under Order XLlll Ruic J(r)
and nor contested it before the Trial .Court. It was only in these
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76            SUPREME COURT REPORTS                        [2017] I l S.C.R.


A    two forums, the issue of injunction could be considered by the
     Courts but not in present proceedings which were confined only
     to the question of withdrawal of suit and nothing else. [Para 31 )[82-
     D-F]
           6. The Trial Court and the Revision Court were justified in
B    permitting the appellant (plaintiff) to withdraw the suit whereas
     the High Cotrrt was not right in setting aside the orders of the
     Revision Court and the Trial Court and giving directions to place
     defendant No.I in possession of the suit land. [Para 32](82-F-G]
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 20007
c    of2017.
           From the Judgment and Order dated 28.05.2010 of the High Court
     ofJudicature at Allahabad, Lucknow Bench in WP No. 5453 of2008.
           Pradeep Kant, Sr. Adv., Divyanshu Sahay, Sunil Kumar Jain, Sanjay
     Goel, Sanjay Kumar Singh, Kaushik Choudhary, Advs. forthe Appellant.
D
            Anurag,Kishorc, Mordhwaj Singh. NikhilJain. Rajcsh Kumar, Advs.
     for the Respondents.
            The Judgment of the Court was delivered by
            ABHA:Y MANOHAR SAPRE, J. I. Leave granted.
E
           2. This appeal is filed by the plaintiff against the final judgment
     and order dated 28.05.2010 passed by the High Court of Judicature at
     Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 5453(M/S)
     of2008 whc(cby the High Court allowed the petition filed by respondent
     No.! herein and set aside the order dated 14.08.2007 passed by the
F    Additional Civil Judge (Jr. Division) I, Hardoi in R.S. No.271 of2006
     and order dated 05.08.2008 passed by the Additional District Judge-III,
     Hardoi in C.R. No.63 of2007.
           3. In order to appreciate the issues arising in the case, it is
     necessary to set out the facts infra. The facts set out hcreinbelow arc
G    taken from the SLP paper book.
           4. The appellant is the plaintiff whereas respondent Nos. I to 4
     are defendant Nos. I to 4 and respondent No.5 is plaintiff No.2 as
     proforma respondent.
            5. The dispute in this case is essentially between the appellant
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        ANIL KUMAR SINGH v. VIJAY PAL SINGH & ORS.                                77
               [ABHAY MANOHAR SAPRE. J.]

  and respondent Nos. I to 4 and relates to a land bearing number 629-N           A
· 0.0320 Hect. and 629-B/l .5820 heel. situated in village -Asyoli Pargana,
  Bangar. Tehsil and District Hardoi (UP) (hereinafter referred to as "suit
  land").
       6. The suit land claimed to be originally belonged to one Shri Jinta
slo Dhamma. He sold it to two persons -Abhishek Singh andAjitPratap B
Singh. Abhishek Singh then claimed to have sold his half share to the ·
appellant on 25.02.2003 whereas Ajit Pratap Singh had already sold his
half share to one Khanulal Mishra on 15.11.2000. Khanulal then claimed
to have sold his 114'' share out of his share to the appellant and remaining
half share toAjit Pratap Singh on 04.06.2003. In this way, the appellant
claimed to become the owner of the suit land to the extent of 3/41h and C
remaining l/4'" fell to the share ofAjit Pratap Singh. The mutation of the
names of the owners of the suit land on their respective shares was
accordingly claimed to have been done.
       7. The appellant claimed to be doing bt1siness of making brick kiln
 on the suit land after purchase of the suit land in partnership with             D
 respondent No.5 under the name - Mis Sushma Brick Field.
        8. In May 2006, the appellant (plaintiff) filed a suit being Civil Suit
 No.271/2006 in the Court of First Additional Civil Judge, Hardoi and
 claimed permanent injunction restraining respondent No. 1 from
 interfering in his possession over the portion of the suit land. The appellant   E
 also applied for grant of temporary injunction under Order XXXIX Rules
 I and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as
 "the Code") against respondent No. I from interfering in his possession
 over the portion of the suit land which he claimed to have·purchascd.
       9. On 31.05.2006, the Trial Court granted ex-parte temporary               F
injunction restraining respondent No. l from interfering in appellant's
possession over the portion of the suit land as claimed and issued notice
of the suit and the application made for grant of temporary injunction to
respondent No. l. The appellant, in the meantime, also applied for police
protection to ensure that order dated 31.05.2006 is not violated by
                                                                                  G
respondent No.I which was granted on 12.07.2006.
      I 0. In the meantime, parties claimed to have entered into a
compromise wherein respondent No. I agreed not to intc1fere in appellant's
possession. The appellant accordingly filed an applicatfon under Order
XXII! Rule l to withdraw the suit. Respondent No.1 opposed the . H
78             SUPREME COURT REPORTS                           [2017] l 1 S.C.R.


A    application. By order dated 14.08.2007. the Trial Coun allowed the
     application and permitted the appellant to withdraw the suit subject to
     payment of cost of Rs.350/- payable to respondent No. I (defendant
     No. I). The appellant's suit was accordingly dismissed as withdrawn.
     The order reads as under:
B          "Case was called out. The parties arc present. The object
           of 61 C2 has been field by the O.P. against the 56C2, let
           the same b,e included with record. Heard. The application
           is returned on costs of Rs.350/- with the condition that there
           shall be n:striction on plaintiff to bring any other further
           suit regarding the subject matter of present case on this
c          cause of action. The objections 61 C2 stands disposed of
           accordingly.
            Let the case be consigned to record room after necessary
            procccdin,g."

D          11. Respondent No. I felt aggrieved and filed revision under Section
     115 of the Code before the Additional District Judge. Hardoi. By order
     dated 05,08.2008, the Additional District Judge dismissed the revision
     and upheld the order of the Trial Court.
            12. Respo11dent No.I felt aggrieved and filed writ petition (W.P.
E    No.5453/2008) in the High Comt at Allahabad against the order of the
     Additional District Judge under Article 227 of the Constitution of!ndia.
     By order dated 28.05.20 I 0, the High Court allowed the respondent's
     writ petition, set aside the orders of Additional District Judge and the
     Trial Court and also directed the appellant (plaint ill) to place re,pondent
     No. I (defendant No. I) in possession of the suit land.
F
           13. It is againstthis order. the plaintiff felt aggrieved and filed this
     appeal by way of special leave in this Court.
            14. Heard Mr. Pradeep Kant, learned senior counsel for the
     appellant and Mr. AnuragKishore. Mr. NikhilJain and Mr. Rajesh Kumar,
     learned counsel for the respondents.
G
            15. Having heard the learned counsel for the parties and on perusal
     of the record of the case, we arc constrained to allow the appeal, set
     aside the impugned order and restore the orders of the Trial Court and
     the Revision Court.
H           16. The short question, which arose for consideration before the
      ANIL KUMAR SINGH v. VIJAY PAL SINGH & ORS.                              79
             [ABHAY MANOHAR SAPRE, J.]

High Court in the writ petition filed by defoudant No. I (respondent No. I    A
herein) was whether the two Courts below were justified in allowing the
application filed by the appellant (plaintiff) under Order XXIII Ruic I of
the Code and thereby justified in permitting the appellant (plaintiff) to
withdraw the suit
       17. In other words, the only question, which the High Court was        B
called upon to examine in the writ petition, was whether the appellant's
(plaintifrs) application filed under Order XX!ll Ruic I of the Code praying
for permission to withdraw the suit was rightly allowed by the Trial Co mt
or not
       18. Order XXIII Ruic I, which is relevant to decide the question,      c
reads as under:
                         "Order XXJIJ Rule I
       L Withdrawal of suit or abandonment of part of claim- (l)
       At any time after, the institution of a suit, the plaintiff may
       as against all or any of the defendants abandon his suit or            D
       abandon a part of his claim:
            Provided that where the plaintiff is a minor or other
       person to whom the provisions contained in rules 1 to 14
       of Order XXXTI extend, neither the suit nor any part of the
       claim shall be abandoned without the leave of the Court.               E
       (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 person is represented
       by a pleader, by a certificate of the pleader to the effect that
       the abandonment proposed is, in his opinion, for the benefit           F
       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
                                                                              G
          (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
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80             SUPREME COURT REPORTS                            [2017] I l S.C.R.


A           permission to withdraw from such suit or such part of the
            claim with liberty to institute a fresh suit in respect of the
            subject-malter of such suit or such part of the claim.
            (4) Where the plaintifl~

               (a) abandons any smt or part of claim under sub-rule (1),
B              or
               (b) iwithdraws 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
c           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 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
D
            sub-rule (3), any suit or part of a claim, without the consent
            of the other plaintiffs."
            l 9. Reading of Order XXIII Rule 1 would go to show that the
     plaintiff has a right to file an application to abandon his suit or part thereof
     at any time after its filing. However, ifthe permission to withdraw the
     suit, whether full or part thereof is granted under Ruic I (3 ), then the
E
     plaintiff would be granted liberty to institute a fresh suit on terms as the
     Com1 may deem lit and proper to impose on the plaintiff in respect of
     the same subject matter of the suit or part thereof.
            20. If the permission to withdraw the suit is granted under sub-
     rulc( I) of Rule l read with sub-rule (4)(a) or (b) then in such event, the
F
     plaintiff ,;-'ould only be liable to pay cost to the defendant. However, in
     such sitlidtion, he is pr~cluded from filing a fresh suit in respect of the
     same subject matter or pmt thereof.
              21. Sub-rule (5) of Ruic I says that, if there are more than one
     plaintiff then m1lcss all the plaintiffs give consent to withdraw the suit,
G    the pcrmissiQn to withdraw the suit cannot be granted under sub-rule (I)
     or (3 ).
           22. Coming to the facts of the case on hand, we find that the
     appellant (pl'aintiff) had applied for withdrawal of his suit under Order
     XXIIl Ruic I. The Trial Court acceded to the prayer and accordingly
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      ANIL KUMAR SINGH v. VIJAY PAL SINGH & ORS.                                 81
             [ABHAY MANOHAR SAPRE, J.]

granted permission to the appellant to withdraw the suit on payment of           A
cost of Rs.350/- to the defendants. This the Trial Court did by taking
recourse to the powers conferred under Order XXIII sub-rule (4)(a) of
Rule I.
        23. The effect of this grant of permission to the appellant was
that though he was allowed to withdraw the suit but was not permitted            B
to file a fresh suit on the same subject matter. Since only one person had
filed the suit and. therefore, sub-rule (5) of Rule I was not attracted.
       24. In our considered opinion, when the plaintiff files an application
under Order XXIll Rule l and prays for permission to withdraw the suit,
whether in full or part, he is always at liberty to do so and in such case,      c
the defendant has no right to raise any objection to such prayer being
made by the plaintiff except to ask for payment oft he cost to him by the
plaintiff as provided in sub-rule (4).
       25. The reason is that while making a prayer to withdraw the suit
under Ruic 1(1 ), the plaintiff docs not ask for any leave to file a fresh       D
suit on the same subject matter. A mere withdrawal of the suit without
asking for anything more can, therefore, be always permitted. In other
words, the defendant has no right to compel the plaintiff to prosecute the
suit by opposing the withdrawal of suit sought by the plaintiff except to
claim the cost for filing a suit against him.
                                                                                 E
       26, However, when the plaintiff applies for withdrawal of the suit
along with a prayer to grant him permission to file a fresh suit on the
same subject matter as provided in sub-rule (3) of Rule 1 then in such
event, the defendant can object to such prayer made by the plaintiff. In
such event, it is for the Court to decide as to whether the permission to
seek withdrawal of the suit should be granted to the plaintiff and, if so,       F
on what terms as provided in sub-rule (3) of Rule !.
        27. Now coming to the facts of the case, we are of the considered
opinion that the Trial Court and the Revision Court (A.DJ) were justified
in permitting the appellant (plaintiff) to withdraw the suit under sub-rule
(I) of Rule I. In other words, since the appellant had applied for               G
withdrawal of the suit under Order XXIII Rule 1, the Trial Court was
justified in permitting withdrawal of the suit subject to the appellant paying
cost ofRs.350/- to respondent No.! (defendant No.I). Such order, in
our view, was in conformity with sub-rule (3) of Rule 1 and was rightly
upheld by the Revision Court.
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82             SUPREME COURT REPORTS                          [2017] l l S.C.R.


A           28. The High Court, however, committedjunsdictional error in
     allowing the defendant's writ petition by finding fault in the orders of the
     Trial Court and Revision Court and giving directions to the plaintiff to
     place defendant No. I in possession of the suit land without there bemg
     any basis whatsoever.
B           29. As mentioned above, the High Court should have seen that
     the scope of writ petition was confined to examine the question as to
     whether the Trial Court and Revision Court were justified in allowing
     the application filed by the plaintiff under Order XXIII Ruic I of the
     Code and to decide this question, the High Court should have confined
     its inquiry to examine as to whether the requirements of Order XXIII
c    Rule I were complied with or not but not beyond it.
            30. There was, therefore, no justification on the part of the High
     Court to have travelled in the issues relating to the grant of injunction in
     relation to the suit land and give direction to the appellant (plaintitl) to
     place respondent No. 1 in possession of the suit land.
D
            31. The High Court should have seen that the issue of grant of
     injunction was not the subject mattcrof the writ petition and. therefore,
     it had nothing to db with the question of grant of injunction and secondly,
     the withdrawal of a suit was governed by Order XXIII Ruic l of the
     Code whereas th(t injunction was governed by Order XXXIX Rules I
E    and 2 of the Code. Both operate in different spheres. That apart, the
     defendant did not challenge the ex-parte grant of injunction order in
     appeal under Order XLill Rule l (r) and nor contested it befon: the Trial
     Court. It was only in these two forums, the issue of injunction could be
     considered by the Courts but not in present proceedings which, as
F    mentioned above, were confined only to the question of withdrawal of
     suit and nothing else.
            32. In the light of foregoing discussion, we are of the considered
     opinion that the Trial Court and the Revision Court were justified in
     permitting the appellant (plaintiff) to withdraw the suit whereas the High
G
     Court was not rigpt in setting aside the orders of the Revision Court and
     the Trial Court and giving directions to place defendant No.I in possession
     of the suit land.
            33. We, however, make it clear that defendant No.I would be at
     liberty to raise issues relating to his ownership and possession in relation
     to the suit land in appropriate proceedings in accordance with law.
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       ANIL KUMAR SINGH v. VJJAY PAL SINGH & ORS.                               83
              [ABHAY MANOHAR SAPRE, J.]

       34. In view of foregoing discussion, the appeal thus succeeds and        A
is allowed. Impugned order is se.t aside and the orders of the Trial Court
and the Revision Court are restored.


Kalpana K. Tripathy                                          Appeal allowt:d.