RAISA SULTANA BEGAM Vs. ABDUL QADIR

JUDGEMENT

(1.) THIS revision is directed against an order passed by a Munsif rejecting an application of Ghufran Ahmad, applicant No. 3 revoking his withdrawal from the suit.

(2.) THE suit was filed in the Court of the learned Munsif by the three applicants; on 5-2-1962 one of them, namely Ghufran Ahmad, made an application stating that he had no dispute left with the defendants opposite parties and praying that his name might be expunged from the array of plaintiffs because he was left with no interest in the subject-matter of the suit. At the time when the application was made, the learned Munsif was away and the application was placed before another Munsif, who ordered it to be laid before the learned Munsif on his return. THE application was placed before the learned Munsif on his return and before any orders could be passed on it Ghufran Ahmad filed an affidavit stating that the application had been made by him on account of fraud practised upon him by the opposite parties and that he did not want to withdraw from the suit. THE learned Munsif allowed his earlier application holding that once he had withdrawn from the suit he could not resile from the withdrawal and that even if he had withdrawn on account of fraud practised upon him his remedy was by means of another suit. All the three plaintiffs applied for revision of this order of the learned Munsif and the revision came before our brother D. S. Mathur, who on account of conflict among authorities referred the following question to a larger Bench:-- "Can the plaintiff who has already moved an application under Sub-rule (1) of Order XXIII, Rule 1, C. P. C. withdraw the application for the withdrawal of the suit before orders are passed on the withdrawal application, i.e., the suit is, as far as the plaintiff is concerned, struck off from the file?"

(3.) IT is this right that has been given statutory recognition through Rule 1 (1). The right is not fettered by any conditions; it is an absolute right which a plaintiff can exercise at his sweet will at any time before the judgment is delivered In Allah Baksh v Niamat Ali 1892 All WN 53 (1), the Court described the right a "absolute" and capable of being exercised "with out any permission from the Court'. Sub-rule (4) is a proviso to Sub-rule (2), which refer-to withdrawal with liberty to me a fresh suit which withdrawal only requires, permission of the Court. The plaintiff does not need consent of the defendant or permission or confirmation of the Court. In the instant case the with drawal was without liberty to file a fresh suit and consequently wo shall leave out of con-sideration withdrawal with liberty to file a fresh suit. In Hasan Badsha v. Raziah Begam, AIR 1949 Mad 772, it was observed that normally a plaintiff has a right to withdraw his suit without reference to the defendants' convenience and without the Courts permission; (the High Court added that there is a limit to the right in suits of a particular nature but we are not concerned with such suits here). Reference may also be made to Veeraswami v. Lakshmudu AIR 1951 Mad 715 and Mahant Biharidasji v Parshottam Das, 1908 32 ILR(Bom) 345.