RAJENDRA PRASAD GUPTAversusPRAKASH CHANDRA MISHRA & ORS.

                                  [2011) 1 S.C.R. 321

                          RAJENDRA PRASAD GUPTA                               A
                                         v.
                       PRAKASH CHANDRA MISHRA & ORS.
                          (Civil Appeal No. 984 of 2006)
                                  JANUARY 12, 2011 .
                                                                              B
              [MARKAN~EY       KATJU AND GYAN SUDHA MISRA, JJ.]

    -<;
                    Code of Civil Procedure, 1908- s. 151 -Application for
              withdrawal of suit - During pendency of the application, plaintiff
              filed another application praying for withdrawal of the earlier c
              withdrawal application - Maintainability of the second
              application - Held: Application praying 'for withdrawal of the
              earlier withdrawal application was maintainable since there
              was no express bar in filing such an application - Section 151
              gives inherent powers to the court to do justice - It has to be D
              interpreted to mean that every procedure is permitted to the
              court for doing justice unless expressly prohibited, and not
              that every procedure is prohibited unless expressly permitted
              - Order of the High Court that once the application-for
              withdrawal of the suit was filed the suit stood dismissed as E
              withdrawn even without any order on the withdrawal
              application, and thus, the second application was not
-........--   maintainable, cannot be accepted and is set aside.

                  . Narsingh Das v. Manga{ Dubey ILR 5 All 163 (1882)
              (FB); Raj Narain Saxena v. Bhim Sen and Ors. AIR 1966           F
              Allahabad 84 (FB) - approved ..

                  Case Law Reference:
                  ILR 5 All 163 (FB) (1882)       approved       Para 6
                                                                              G
                  AIR 1966 Allahabad 84 FB        approved       Para 7
                   CIVIL AP PELLATE JURISDICTION : Civil Appeal No. 984
              of 2006.
                                           321                                H
    322      SUPREME COURT REPORTS                 [2011] 1 S.C.R.

A       From the Judgment & Order dated 06.02.2004 of the High
    Court of Allahabad in first Appeal in Order No. 2103 of 2003.

         S.S. Mishra, Rajkumar Parasher, Sibo Sankar Mishra for
    the Appellant.
B
        P.K. Jain, P.K. Goswami, Ashok K. Sharma, Praveen Kr.
    Mutreja, Sobodh Kumar, Goodwill lndeevar for the
    Respondents.

          The following Order of the Court was delivered
c
                               ORDER

        Heard learned counsel for the appellant and respondent
    Nos. 1 to 3. No one appeared for respondent No. 4.

D        This Appeal, by special leave, has been filed against the
    impugned judgment of the High Court of Allahabad dated
    6.2.2004 passed in FAFO No. 2103/2003.

         It appears that the appellant was the plaintiff in Suit No.
E   1301 of 1997 before the Court of Civil Judge (Junior Division)
    Varanasi. He filed an application to withdraw the said suit.
    Subsequently, it appears that he changed his mind and before
    an order could be passed in the withdrawal application he filed
    an application praying for withdrawal of the earlier withdrawal
F   application. The second application had been dismissed and
    that order was upheld by the High Court. Hence, this appeal
    by. special leave.

       The High Court was of the view that once application for
  withdrawal of the suit is filed the suit stands dismissed as
G withdrawn even without any order on the withdrawal application.
  Hence, the second application was not maintainable. We do
  not agree.

          Rules of procedure are handmaids of justice. Section 151
H   of the Code of Civil Procedure gives inherent powers to the
       RAJENDRA PRASAD GUPTA v. PRAKASH                    323
             CHANDRA MISHRA & ORS.
court to do justice. That provision has to be interpreted to mean A
that every procedure is permitted to the court for doing justice
unless expressly prohibited, and not that every procedure is
prohibited unless expressly permitted. There is no express bar
in filing an application for withdrawal of the withdrawal
application..                                                     B

     In Narsingh Das v. Mangat Dubey, ILR 5 All 163 (FB)
(1882), Mr. Justice Mahmood, the celebrated Judge of the
Allahabad High Court, observed:-

       "Courts are not to act upon the principle that every C
       procedure is to be taken as prohibited unless it is
       expressly provided for by the Code, but on the converse
       principle that every procedure is to be understood as
       permissible till it is shown to be prohibited by the law. As
       a matter of general principle prohibition cannot be D
       presumed.

     The above view was followed by a Full Bench of the
Allahabad High Court in Raj Narain Saxena v. Bhim Sen &
others, AIR 1966 Allahabad 84 FB, and we agree with this             E
view.

     Accordingly, we are of the opinion that the applic'atiO~
praying for withdawal of the withdrawal application was          f
maintainable. We order accordingly.
                                                               F
     In the result, the impugned judgment of the High Court is
set aside and the Appeal is allowed. No costs.

    The suit shall proceed and to be decided on merit,
expeditiously.
                                                                     G
N.J.                                          Appeal allowed.