High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD901 SECOND APPEAL NO. 443 OF 2004SUSHILABAI MAHADEO SHINDEVERSUSJAHEDABEE MAHEMOOD SHAIKH AND ORS…..Mr. Shaikh Mujtaba Gulam Mustafa, Advocate for AppellantMr. G. L. Deshpande and Mr. G. K. Naik (Thigale) Advocate for respondent no.2Mr. M. L. Dharashive, Advocate for respondent no.3.…..WITHCIVIL APPLICATION NO. 2006 OF 2024 IN SA/443/2004LAXMIKANT BHIKULAL VARMA AND ANOTHERVERSUSSUSHILABAI MAHADEO SHINDE AND OTHERS…..Mr. B. R. Warma, Advocate for ApplicantsMr. G. L. Deshpande and Mr. G. K. Naik (Thigale) Advocate for respondent nos.1 and 2Mr. M. L. Dharashive, Advocate for respondent no.3.….. WITHCIVIL APPLICATION NO. 2586 OF 2024 IN SA/443/2004MAHADAPPA SIDRAMAPPA KORKE AND OTHERSVERSUSSUSHILABAI MAHADEO SHINDE…..Mr. B. R. Warma, Advocate for ApplicantsMr. Shaikh Mujtaba Gulam Mustafa, Advocate for respondent no.1Mr. M. L. Dharashive, Advocate for respondent no.3Mr. G. L. Deshpande, Advocate for respondent no.2…..901.sa443.04.odt1 of 9
Legal Reasoning
WITHCIVIL APPLICATION NO. 7612 OF 2024 IN SA/443/2004JAHEDABEE MAHEMOOD SHAIKH AND ANOTHERVERSUSSUSHILABAI MAHADEO SHINDE…..Mr. G. L. Deshpande, Advocate for ApplicantsMr. Shaikh Mujtaba Gulam Mustafa, Advocate for appellant in SAMr. M. L. Dharashive, Advocate for respondent no.3CORAM: R. M. JOSHI, J.DATE: 12th FEBRUARY, 2025PER COURT :-1.Learned counsel for the appellant along with appellantpresent.2.Learned counsel for the appellant, on written instructions,seeks withdrawal of the appeal. The said written instructions are takenon record and marked ‘X’ for the purpose of identification.3.Learned counsel for the intervenor opposed the applicationfor withdrawal on the ground that the intervenor has a right and interestin the subject matter of the appeal. It is claimed that the appellant is theoriginal plaintiff and during the pendency of the suit being R.C.S. No.250/1994 the transfer of the property has been effected by the plaintiffin favour of the intervenor. By referring to provision of Order 23 Rule 1Aof the Code of Civil Procedure, it is his contention that the first of all the901.sa443.04.odt2 of 9 withdrawal of suit is not as of a right and secondly, when the intervenorhas shown his interest in the subject matter, the application of intervenorought to be decided first before taking decision on the withdrawal of theappeal. To support his submissions he placed reliance on the judgment ofHon’ble Supreme Court in case of Amit Kumar Shaw and another Vs.Farida Khatoon and another, AIR 2005 Supreme Court 22094.Learned counsel for the appellant submits that the appellantcannot be compelled to pursue the appeal if she does not desire do so. Itis also pointed out that the intervenors have already filed substantialsuit.5.Section 107(2) of CPC provides for Appellate Court to havesame powers to perform as nearly as conferred on Courts of originaljurisdiction in respect of suit instituted therein. Order XXIII makesprovisions about the withdrawal and adjustment of suit. According toRule 1 at any time after the institution of a suit, plaintiff may against allor any of the defendants abandon his suit or even part of claim. Otherpart of this rule deal with different contingencies such as withdrawal ofsuit filed by minor, or with liberty file fresh suit or withdrawal of suit byone of plaintiffs. These contingencies have no application to the presentcase.901.sa443.04.odt3 of 9 6.Thus, there cannot be any dispute about the the position oflaw that no party can be compelled to prosecute a suit/proceeding. Thus,the simplicitor withdrawal of the proceeding must be allowed. In thisregard reference can be made to the judgment of Hon’ble Supreme Courtin case of Bijayananda Patnaik Vs. Satrughna Sahu and Others, AIR1964 SC 1566, wherein it is held that,7. This position with respect of withdrawal of an electionpetition is not in dispute. The question however is whether thesame position applies to the withdrawal of an appeal and thisbrings us to the consideration of the provisions of s. 116A ofthe Act, which we have already set out above. The powers ofthe High Court in respect of an appeal under that section arecontained in sub-s.(2), which lays down that "the High Courtshall, subject to the provisions of this Act, have the samepowers, jurisdiction and authority, and follow the sameprocedure, with respect to an appeal under this Chapter as ifthe appeal were an appeal from an original decree passed by acivil court situated within the local limits of its civil appellatejurisdiction".Sub-s. (2) therefore confers all the powers on the High Courtand enjoins upon it to follow the same procedure as in the caseof appeals from original decree in suits. It is true that thepowers of the High Court under sub-s. (2) are subject to theprovisions of the Act. This Court had occasion to consider thismatter in T. K. Gangi Reddy v. M. C. Anjaneya Reddy (1960) 22E.L.R. 261., in connection with an argument that the High Courthad no jurisdiction to set aside the finding of the electiontribunal on questions of fact arrived at on an appreciation ofthe evidence. In that connection this Court observed withrespect to sub-s. (2) of s. 116A that"it was manifest that the jurisdiction of the HighCourt in the disposal of appeals is similar to that it has inthe disposal of appeals from original decrees. No doubtthis was subject to the provisions of the Act and noprovision has been brought to the notice of the Court901.sa443.04.odt4 of 9 which curtailed that jurisdiction. Therefore when anappeal is filed the entire case is reopened in the appellatecourt". Clearly, therefore, when sub-s. (2) says that the powers,jurisdiction and authority of the High Court is subject to theprovisions of the Act, it means that the provision must be anexpress provision in the Act or such as arises by necessaryimplication from an express provision. One such expressprovision is to be found in the proviso to sub-s. (2) of s. 116A,which lays down that "where the High Court consists of more than twojudges, every appeal under this Chapter shall be heard bya bench of not less than two judges." Another express provision is to be found in sub-s. (4) whichgives express power to the High Court to stay the operation ofthe order appealed from and provides that where such a stayorder is made, the order appealed from shall be deemed neverto have taken effect under sub-s. (1) of s. 107. Again sub-s.(5) enjoins on the High Court to decide the appeal asexpeditiously as possible with a direction that it shall bedetermined finally within three months as far as possible. Thereis, however, no express provision in Chap. IV-A dealing withappeals, which deals with the question of withdrawal of appealsunder that Chapter. Nor do we think that Sections 109 and 110necessarily imply that an appeal also cannot be withdrawn as amatter of right, unless the procedure laid down in thosesections is followed. One reason for this view may at once bestated. The losing party is not bound to file an appeal and if hedoes not, nobody else has the right to do so. The objectapparently is that the election petition filed should, if any voterso desire, be heard and decided. The sections dealing withsubstitution on death of the petitioner lead to that view : seeSections 112-115. There is no such provision for appeals. Itseems to us that if Parliament intended that the provisions ofSections 109 and 110 which deal with withdrawal of electionpetitions before a tribunal shall also apply to withdrawal ofappeals before the High Court under Chap. IV-A an expressprovision could have been easily made to that effect in s. 116-Aby adding a suitable provision in the section that the provisionsof Sections 109 and 110 would apply to withdrawal of appeals901.sa443.04.odt5 of 9 before the High Court as they apply to withdrawal of electionpetitions before the tribunal. In the absence of such a provisionin Chap. IV-A, we do not think that the High Court was right inimporting the principles of Sections 109 and 110 in the matterof withdrawal of appeals before the High Court. So far thereforeas the question of withdrawal of appeals before the High Courtunder Chapter IV-A is concerned, it seems to us that the HighCourt has the same powers, jurisdiction and authority in thematter of withdrawal as it would have in the matter ofwithdrawal of an appeal from an original decree passed by acivil court within the local limits of its civil appellate jurisdictionwithout any limitation on such powers because of Sections 109and 110. The High Court thus has the same powers, jurisdictionand authority and has to follow the same procedure in thematter of withdrawal of appeal under s.116-A as in the matterof an appeal from an original decree before it, and there is nowarrant for importing any limitation in the matter on theanalogy of Sections 109 and 110 of the Act, which expresslydeal only with election petitions and not with appeals under s.116-A. 8. Let us therefore see what powers the High Court has in thematter of withdrawal of an appeal from an original decreebefore it and what procedure it has to follow in that behalf. Theprovisions in the Code relating to withdrawal of suits are to befound in O. XXIII, r. 1. Sub-rule (1) thereof lays down that atany time after the institution of a suit the plaintiff may, asagainst all or any of the defendants, withdraw his suit orabandon part of his claims. Sub-rule (2) provides that"where the Court is satisfied (a) that a suit must fail byreason of some formal defect, or (b) that there are othersufficient grounds for allowing the plaintiff to institute afresh suit for the subject-matter of a suit or part of aclaim, it may, on such terms as it thinks fit, grant theplaintiff permission to withdraw from such suit or abandonsuch part of a claim with liberty to institute a fresh suit inrespect of the subject-matter of such suit or such part ofa claim." We have already said that sub-rule (1) gives absolute power tothe plaintiff to withdraw his suit or abandon part of his claimagainst all or any of the defendants, and where an application901.sa443.04.odt6 of 9 for withdrawal of a suit is made under O. XXIII, r. 1(1), theCourt has to allow that application and the suit standswithdrawn. It is only under sub-rule (2) where a suit is notbeing withdrawn absolutely but is being withdrawn on conditionthat the plaintiff may be permitted to institute a fresh suit forthe same subject-matter that the permission of the court forsuch withdrawal is necessary. The provisions of O. XXIII r. 1(1)and (3) also apply in the same manner to withdrawal ofappeals. In Kalyan Singh v. Rahmu MANU/UP/0040/1901 :I.L.R. (1901) 23 All. 130., it was held thatwhere no objection had been filed by therespondent, the appellant had an absolute right towithdraw his appeal at any time before judgment. Thisview was followed by the Allahabad High Court inKanhaya Lal v. Partap Chand (1931) 29 A.L.J. 232., whereit was held that having regard to O. XXIII, r. 1(1) and s.107(2) of the Code of Civil Procedure, where no cross-objection has been filed by the respondent, an appellanthas the right to withdraw his appeal unconditionally, hisonly liability being to pay costs. In Dhondo NarayanShiralkar v. Annaji Pandurang Kokatnur I.L.R. (1939)Bom. 66., it was held that "an appellant is entitled as ofright to withdraw his appeal, provided the respondent hasnot acquired any interest thereunder". There was howeverdifference between the Allahabad and Bombay HighCourts as to whether s. 107(2) of the Code of the CivilProcedure would help an appellant in such a case. It isunnecessary for our present purpose to decide whetherthe absolute right of the appellant to withdraw an appealunconditionally flows from s.107(2) or is an inherent rightof the appellant on the analogy of O. XXIII r. 1(1). Butthere can be no doubt that an appellant has the right towithdraw his appeal unconditionally and if he makes suchan application to the court, it has to grant it. The difficultyarising out of any cross-objection under which therespondent might have acquired an interest as pointedout by the Bombay High Court, no longer remains in viewof O. XLI r. 22(4), which now permits the cross-objectionto be heard even though the appeal is withdrawn.Therefore when the High Court is hearing an appeal froman original decree and an application is made to it towithdrew the appeal unconditionally, it must permit suchwithdrawal subject to costs and has no power to say that901.sa443.04.odt7 of 9 it will not permit the appeal to be withdrawn and will goon with the hearing of the appeal. The power of the HighCourt under s. 116A(2) when hearing an appeal from anelection petition is the same as its power when hearing anappeal from an original decree, and the procedure is alsothe same, for there is no express provision to thecontrary in the matter of withdrawal of an appeal in theAct. Therefore when an appellant under s. 116-A makesan application for an unconditional withdrawal of theappeal, the power of the High Court, consistently with itspower in an appeal from an original decree, is to allowsuch withdrawal, and it cannot say that it will not permitthe appeal to be withdrawn. We are therefore of opinionthat the High Court was in error in importing theprinciples of Sections 109 and 110 of the Act which dealonly with the withdrawal of election petitions and not withthe withdrawal of appeals.”(Emphasis supplied)7.Now question arises as to whether the application forintervention filed in this proceedings are required to be heard first. If theapplications for intervention are heard at the first instance, it will amountto compelling the appellant to continue with the appeal which she doesnot wish to. This is wholly impermissible in law. 8.In so far as reliance placed on the Rule 1A of Order 23 of CPCby intervenors is concerned, the said provision applies to a defendantwho can make an application to prosecute the suit. Such provision isessentially made in order to take care of the situation which may occurfor example in a suit for partition. If plaintiff seeks withdrawal of the suitfor partition, the defendant also being plaintiff, may seek to transpose901.sa443.04.odt8 of 9 himself as plaintiff. Such issue however is not involved herein this case.Moreover, the intervenors have already filed substantiate suit and assuch no prejudice can be claimed to have been caused to them byaccepting request for simplictor withdrawal of appeal.9.Having regard to these facts that there cannot be anyimpediment in permitting simplicitor withdrawal of the appeal. Hence,appeal stands disposed as withdrawn. Pending Civil applications standdisposed of. Needless to say that disposal of this appeal will not becomean impediment for adopting any legal remedy available for theintervenor. (R. M. JOSHI, J.)ssp901.sa443.04.odt9 of 9