PRAKASH CHANDRA MISHRA Vs. RAJENDRA PRASAD GUPTA

JUDGEMENT

(1.) This is defendant's appeal. It arises out of a Suit No. 1301 of 1997 filed by the plaintiff respondents in the Court of Civil Judge (Junior Division) for permanent injunction restraining the defendants directing them not to interfere in the plaintiffs' exclusive right of use and passage over the land described by letters and shown by red colour in the plaint map. It appears that the plaintiffs respondents filed an application for temporary injunction, which was granted by the trial court. On 12.12.1997 the plaintiffs respondents moved an application for withdrawal of the suit. A true copy of the said application has been annexed as Annexure-1 to the affidavit and is on Page 33 of the paper book. It has been stated therein that the plaintiffs presently want to withdraw the suit and that none of the defendants have appeared. In the relief clause the prayer for withdrawal of the suit was made. The Court fixed 7.1.1998 as it was the date fixed for appearance of the defendants in the suit and also for disposal of temporary injunction application. On that date no objection was filed by the defendants. Before the order could be passed by the Court on the application to withdraw the suit, another application was filed by the plaintiffs respondents for withdrawing the application of withdrawal of the suit.

(2.) The trial court was of the opinion that the application for withdrawal of the suit was under Order XXIII, Rule 1 of the Code of Civil Procedure. No specific order for withdrawal of the suit was required. Therefore, for all practical purposes the suit stands withdrawn. In that view of the matter the application to withdraw the application for withdrawal of the suit is not maintainable. Reliance was placed upon a Division Bench judgment of this Court. By order dated 18.9.1998 application No. 14-Ka was rejected and the suit was treated to have been dismissed. This order has been set aside by the Court below in Civil Appeal No. 262 of 1998 by its judgment and order dated 5.5.2003. The matter has been remanded to the Court below for disposal of the dispute on merit. Aggrieved by this order the defendants have come up before this Court in present appeal.

(3.) Heard learned counsel for the parties and perused the record.