THOMAS GEORGE Vs. SKARIAH JOSEPH

JUDGEMENT

(1.) A very interesting question is raised before me. The plaintiff in a suit moved a petition to withdraw the suit under O.23 R.1(1) of the Code of Civil Procedure. While that application was pending, and apparently before the Court judicially noticed that application, the plaintiff sought to withdraw that application by another application. This was objected to by the 2nd defendant who is the revision petitioner. According to him, when once the plaintiff moves for withdrawal, withdrawal becomes automatically operative and he cannot be allowed to go back upon his earlier motion. This plea was not accepted by the court below and hence the 2nd defendant has come up in revision.

(2.) It appears to me that if any plaintiff can withdraw a suit at any time after the institution of the suit he can equally well withdraw his application moved under O.23 R.1(1) of the CPC, before it is acted upon. It is more so because even an application is not contemplated for withdrawal. Withdrawal becomes effective when the plaintiff expresses his intention to withdraw in such manner as to be communicated to the court and it is on such communication that withdrawal becomes effective. By the term 'communication', I mean not merely the filing of a petition in court but bringing the fact of withdrawal to the notice of the court so as to enable the court to act upon it by passing appropriate order, such as confining the case to the records, ordering costs or disposing it of for statistical purposes. What could be said of a withdrawal application could equally be said of an application to withdraw it and if that be the case, there can be no fetter on the right of the plaintiff who has sought to with draw a suit to say that he no longer wants to withdraw. In fact, in the case of a petition for withdrawal since no orders are necessary there is no reason why it could not be withdrawn before the court acts upon it.

(3.) Different views have been taken on this by the courts of this country and I find that preponderance of view is in favour of permitting withdrawa1 But counsel for the revision petitioner relies on two decisions to support his stand, AIR 1966 Allahabad 318 and AIR 1970 Mysore 155, particularly the former decision. I am not going into it in elaborate detail because I am resting the decision of this case on another point. But I would venture to observe that the question is not whether the withdrawal should be permitted because of locus poenitentiae on the part of the party who moves for withdrawal. That may possibly be the reason which prompts a party to seek withdrawal but the question is whether the party has got a right to seek withdrawal. Just as be seeks to withdraw a suit, he can very well seek to withdraw an application for withdrawal The reasoning in the decision of the Allahabad High Court appears to be that when once an application for withdrawal is filed, withdrawal is complete as it is automatic Nothing more remains and therefore the party cannot go back on it. If no orders on the withdrawal petition are contemplated, then, of course, the mere fact a that petition has been filed is of no consequence. It appears to me that though no order on an application for withdrawal under O.23 R.1(1) is called for, nevertheless withdrawal becomes irrevocable only when he court has occasion to exercise its mind on the factum of withdrawal brought to its notice After that moment, it is not open to the party to back out of it. Until that is brought to its notice, the withdrawal has not been acted upon. It is just as good or as bad as a withdrawal in the contemplation of a party. I think this sufficient to answer the decision of the Allahabad High Court. I do not wan to go into it in detail because, as I said, on the facts of this case the objection, of the revision petitioner at any rate should have been considered to be of very little substance.