Usilampatti Shatriyakula Hindu Nathathi Nadarkal Uravaimuraikku Pathiyamana Nadar Saraswathi Higher Secondary School v. The Director of School EducationCollege Road

4. According to the learned Senior Counsel appearing for theappellant/writ petitioner, since in the order dated 09.06.2010 passed bythe Principal Seat of this Court in W.P. Nos.12209 of 2008, 6141 and 13865of 2009, the appellant/writ petitioner was directed to approach the CivilCourt and since even as per the judgments of various Division Benches, when there is a dispute with regard to the educational agency, the matterhas to be decided only by the Civil Court, the appellant/writ petitionerhad approached the Civil Court. In support of his contention, the learnedSenior Counsel appearing for the appellant/writ petitioner has relied onparagraph nos.7, 9 and 10 of the judgment reported in AIR 1963 SC 1566,Bijayananda Patnaik vs. Satrughna Sahu and Others which read as follows: "7. Let us therefore see what powers the High Court has inthe matter of withdrawal of an appeal from an original decreebefore it and what procedure it has to follow in that behalf.

The provisions in the Code relating to withdrawal of suits are tobe found in O.23, R.I. Sub-rule (i) 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 claim. Sub-rule (2) provides that"where the Court is satisfied (a) that a suit mustfail by reason of some formal defect, or (b) that thereare other sufficient grounds for allowing the plaintiffto institute a fresh suit for the subject matter of asuit or part of a claim, it may on such terms as itthinks fit, grant the plaintiff permission to withdrawfrom such suit or abandon such part of a claim withliberty to institute a fresh suit in respect of thesubject matter of such suit or such part of a claim. "We have already said that sub-rule (1) gives absolute powerto the plaintiff to withdraw his suit or abandon part of hisclaim against all or any of the defendants, and where anapplication for withdrawal of a suit is made under O.23, R.1(1),the Court 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It is only under sub-rule (2) where a suit is notbeing withdrawn absolutely but is being withdrawn on conditionthat the plaintiff may be permitted to institute a fresh suit for https://hcservices.ecourts.gov.in/hcservices/ 4the same subject matter that the permission of the court for suchwithdrawal is necessary. The provisions of O.23, R.1(1) and (3)also apply in the same manner to withdrawal of appeals. InKalyan Singh v. Rahmu ILR 23 All 130 it was held that where noobjection had been filed by the respondent, the appellant had anabsolute right to withdraw his appeal at any time beforejudgment. This view was followed by the Allahabad High Court in Kanhaya Lal vs. Partap Chand, 29 All LJ 232 where it was heldthat having regard to O.23, R.1(1) and S.107(2) of the Code of Civil Procedure, where no cross objection has been filed by therespondent, an appellant has the right to withdraw his appealunconditionally, his only liability being to pay costs.

InDhondo Narayan Shiralkar v. Annaji Pandurang Kokanur, ILR (1939)Bom: 66 (AIR 1938 Bom 442) it was held that: "an appellant is entitled as of right to withdrawhis appeal, provided the respondent has not acquiredany interest thereunder. "There was however difference between the Allahabad and BombayHigh Courts as to whether S.107(2) of the Code of Civil Procedurewould help an appellant in such a case. It is unnecessary forour present purpose to decide whether the absolute right of theappellant to withdraw an appeal unconditionally flows from S.107(2) or is an inherent right of the appellant on the analogy ofO.23, R.1(1). But there can be no doubt that an appellant hasthe right to withdraw his appeal unconditionally and if he makessuch an application to the court, it has to grant it. Thedifficulty arising out of any cross-objection under which therespondent might have acquired an interest as pointed out by the Bombay High Court, no longer remains in view of O.41 R.22(4)which now permits the cross-objection to be heard even though theappeal is withdrawn.

Therefore when the High Court is hearing anappeal from on original decree and an application is made to itto withdraw the appeal unconditionally, it must permit suchwithdrawal subject to costs and has no power to say that it willnot permit the appeal to be withdrawn and will go on with thehearing of the appeal. The power of the High Court under S.116A(2) when hearing an appeal from an election petitioner is thesame as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is no expressprovision to the contrary in the matter of withdrawal of anappeal in the Act. Therefore when an appellant under S.116-Amakes an application for an unconditional withdrawal of theappeal, the power of the High Court consistently with its powerin an appeal from an original decree, is to allow suchwithdrawal, and it cannot say that it will not permit the appealto be withdrawn.

We are therefore of opinion that the High Courtwas in error in importing the principles of Ss.109 and 110 of the Act which deal only with the withdrawal of election petitions andnot with the withdrawal of appeals. 9. We are therefore of opinion that the High Court should https://hcservices.ecourts.gov.in/hcservices/ 5have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Courtin this connection need not have referred to the affidavits filedon behalf of the other two defeated candidates before it, forsuch affidavits were irrelevant, if Satrughna Sahu, the appellantbefore the High Court, was entitled to withdraw the appealunconditionally and the High Court could not refuse suchwithdrawal. 10. In the view we have taken on the first question raisedbefore us, it is not necessary to deal with the second question, though we may add that as at present advised it seem to us thatthe High Court was in error in treating the application forwithdrawal of the appeal as if it were an application forwithdrawal of an election petition under S.109 and referring thematter to the election tribunal.

Even if the High Court hadpower to refuse an application for withdrawal of an appeal, theproper course for the High Court would be to consider all thatis required by S.110 itself. However in view of our decision onthe first question we need not pursue the point further. "5. However, according to the learned Senior Counsel appearing forthe fifth respondent, after the writ appeal was posted for judgment, on31.03.2011, the appellant/writ petitioner had got an interim order in thesaid suit; since this request for withdrawal is made after lengthyarguments and after the matter was posted for judgment, the appellant/writpetitioner should not be permitted to withdraw the writ appeal. Insupport of this contention, the learned Senior Counsel appearing for theappellant/writ petitioner has relied on paragraph nos.13 and 17 of thejudgment reported in 2000 3 CTC 558, K.S. Bhoopathy and Others vs. Kokilaand others which read as under: "13.

The provision in Order XXIII Rule 1 CPC is an exceptionto the common law principle of non suit. Therefore on principlean application by a plaintiff under Sub-rule 3 cannot be treatedon par with an application by him in exercise of the absoluteliberty given to him under Sub-rule 1. In the former it isactually a prayer for concession from the Court after satisfyingthe Court regarding existence of the circumstances justifying thegrant of such concession. No doubt, the grant of leave envisagedin Sub-rule (3) of Rule 1 is at the discretion of the Court butsuch discretion is to be exercised by the Court with caution andcircumspection. The legislative policy in the matter of exerciseof discretion is clear from the provisions of Sub-rule (3) inwhich two alternatives are provided; (1) where the Court issatisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied that there aresufficient grounds for allowing the plaintiff to institute afresh suit for the subject matter of a suit or part of a claim.

Clause (b) of Sub-rule (3) contains the mandate to the Court thatit must be satisfied about the sufficiency of the grounds forallowing the plaintiff to institute a fresh suit for the sameclaim or part of the claim on the same cause of action. The Courtis to discharge the duty mandated under the provision of the Code https://hcservices.ecourts.gov.in/hcservices/ 6on taking into consideration all relevant aspects of the matterincluding the desirability of permitting the party to start afresh round of litigation on the same cause of action. Thisbecomes all the more important in a case where the applicationunder Order XXIII Rule (1) is filed by the plaintiff at the stageof appeal. Grant of leave in such a case would result in theunsuccessful plaintiff to avoid the decree or decrees against himand seek a fresh adjudication of the controversy on a cleanslate. It may also result in the contesting defendant losing theadvantage of adjudication of the dispute by the Court or courtsbelow.

Grant of permission for Withdrawal of a suit with leave tofile a fresh suit may also result in annulment of a right vestedin the defendant or even a third party. The appellate/secondappellate court should apply its mind to the case with a view toensure strict compliance with the conditions prescribed in OrderXXIII Rule 1(3) CPC for exercise of the discretionary power inpermitting the suit with leave to file a fresh suit on the samecause of action. Yet another reason in support of this view isthat withdrawal of a suit at the appellate/second appellate stageresults in wastage of public time of Courts which is ofconsiderable importance in the present time in view of largeaccumulation of cases in lower courts and inordinate delay indisposal of the cases.17. From the above it appears that the approach of the HighCourt was that the plaintiff should have prayed for declarationof title which they had omitted to include in the plaint.

It wasfor the plaintiffs to frame their suit in any form as advised. Ifthey felt that there was a cause of action for declaration oftheir title to the suit property they could have made a prayer inthat regard. If they felt that a declaration of their right toexclusive user of the pathway was necessary they should haveframed the suit accordingly. On the other hand the plaintiffsmerely sought a decree of injunction permanently restraining thedefendants from disturbing their right of user of the property. From the facts an circumstances of the case as emanating from thejudgments of the trial court and the first appellate court it isclear that the plaintiffs realised the weakness in the claim ofexclusive right of user over the property and in order to getover the findings against them by the first appellate court theytook recourse of Order XXIII Rule 1(3) CPC and filed theapplication for withdrawal of the suit with leave to file freshsuit.

The High Court does not appear to have considered therelevant aspects of the matter. Its approach appears to have beenthat since the interest of be defendants can be safeguarded bygiving them permission for user of the pathway till adjudicationof the controversy in the fresh suit to be filed, permission forwithdrawal of the suit as prayed for can be granted. Such anapproach is clearly erroneous. It is the duty of the Court tofeel satisfied that there exist proper grounds/reasons forgranting permission for withdrawal of the suit with leave to filefresh suit by the plaintiffs and in such a matter the statutorymandate is not complied by merely stating that grant ofpermission will not prejudice the defendants. In case such https://hcservices.ecourts.gov.in/hcservices/ 7permission is granted at appellate or second appellate stageprejudice to defendant is writ large as he loses the benefit ofthe decision in his favour in the lower court.

"and also paragraph no.5 of the judgment of the Hon'ble Apex Court reportedin 2009 3 MLJ 300 (SC), Abhimanyoo Ram vs. State of U.P. and another whichreads as under: "Any attempt by a litigant to retain the benefit of theinterim order by avoiding final adjudication, requires to bedeprecated. In fact, it requires to be dealt with sternly. Courts should bestow caution while dismissing cases whereinterim relief had been granted, as not pressed or as withdrawn. The Courts cannot proceed on the assumption that all concernedwould know about the legal consequences of dismissal andtherefore, it is not necessary to make any order in regard tothe interim relief already granted. Even though the legaleffect of dismissal on withdrawal, is vacation of the interimorder, the concerned respondents not being aware of the legalconsequences, will not take consequential action but continuethe benefit extended to the petitioner by the interim order, unless there is a specific direction spelling out theconsequences.

Sometimes, the concerned departmental officials, on account of collusion with the petitioners who had obtainedthe interim relief, will not withdraw or reverse the benefitgranted to the petitioner in pursuance of the interim order, when the petition is withdrawn or dismissed as not pressed. Therefore, appropriate consequential directions cancelling orvacating the interim order should be passed so as to restorestatus quo ante. In cases where the prayer for dismissal (asnot pressed or withdrawn) is made even before the respondent isserved, then the order vacating the interim order should becommunicated to the authority against whom the interim order wasissued, so that any benefit extended as a consequence of theinterim order can be withdrawn or reversed. The only exceptionis where the respondents agree for the continuance of theinterim order as a final relief, or agree that the benefits ofthe interim order already granted need not be disturbed, inwhich event, the Court should record such submission and passappropriate consequential orders.

"As per paragraph no.5 of the judgment reported in 2009 3 MLJ 300 whichhas been extracted above, according to the learned Senior Counselappearing for the fifth respondent, in the event of the appellant/writpetitioner being permitted to withdraw the writ appeal, the findingrendered in favour of the fifth respondent in the writ appeal will getobliterated. 6. The learned Senior Counsel appearing for the fifth respondenthas further submitted that after the arguments were over and when thematter was posted for judgment on 05.04.2011, on 31.03.2011, theappellant/writ petitioner has got an order of injunction from the CivilCourt; hence, the appellant/writ petitioner wants to withdraw the writappeal; besides, in view of the interim order granted in this writ appeal, the fifth respondent was prevented from enjoying the fruits of the orderdated 12.10.2010; apart from this, even as per the order which had been https://hcservices.ecourts.gov.in/hcservices/ 8initially passed, the term of office of the fifth respondent is from25.01.2009 to 25.01.2012 and by virtue of the interim order got by theappellant/writ petitioner in the writ appeal, the fifth respondent isprevented from enjoying the fruits of the said order; when the judgmentwas reserved, since an order of injunction has been secured by theappellant/writ petitioner by moving the Civil Court, the finding given inthe writ petition by the learned Single Judge becomes nullified, consequently, the fifth respondent could not enjoy either the order of thelearned Single Judge or the order passed by the departmental authorities; that apart, based on the conduct of parties, the writ appeal should not bepermitted to be withdrawn; besides, after arguing at length and wastingthe time of the Court, if withdrawal of the writ appeal is permitted, thatwill amount to permitting the parties to abuse the process of Court.

7. The learned Senior Counsel appearing for the fifth respondenthas further submitted that the learned Single Judge, while disposing ofthe writ petition, had given two findings in favour of the fifthrespondent in paragraph nos.13, 15 and 16 of the order dated 04.02.2011and the same read as under: "13. However, this Court is not inclined to go into therival contentions made by the petitioner and the fifthrespondent. It is seen that the sixth respondent had acceptedthe Correspondentship of the fifth respondent on the basis of Form-VII taken on file by the District Registrar. Ultimatelyif any party is aggrieved either by the acceptance of Form VIIor by the consequential recognition by the educationaldepartment, on their right in the educational agency, they willhave to file only a suit and such issue cannot be decided bythis Court. 15. Subsequently, a division bench in the subsequentround of litigation in C.M.S. Evangelical Suvi David MemorialHigher Secondary School Committee Karisal through its Secretaryvs. the District Registrar Cheranmahadevi, Tirunelveli Districtand others reported in 2008 (4) L.W. 1080 in paragraph 41 hadobserved as follows: "41....Once Form VII had been accepted, eventhough it did not have the effect of finallydeciding about the validity or otherwise of anyelection, for the purpose of the Act, it should beconsidered as final, so that other consequencessuch as recognition of the educational authoritieswould follow, subject of course to any decision ofa competent Civil Court.

In the absence of anydecision of the Civil Court, final or eveninterlocutory, the educational authorities werenot expected to go behind such Form VII, which hadbeen taken on record. "16. In the present case, the order passed by the Department was earlier challenged by the very same petitionerwhich was rejected by this court. Though the petitioner had https://hcservices.ecourts.gov.in/hcservices/ 9claimed that he had filed a writ appeal, but, however, by wayof abundant caution he had moved the Sub Court. Even in thereply affidavit, no such details were given regarding theappeal filed by him. Therefore, it has to be presumed that theearlier order passed by this Court has become final. In anyevent, he has filed a civil suit in respect of the very samecause of action. Therefore, the petitioner will have to pursuethe suit which is now at present pending before the Sub Court, Theni. "and if the appellant/writ petitioner is permitted to withdraw the writappeal, the finding given by the learned Single Judge will getobliterated.

8. We have considered the above submissions made by the respectivelearned Senior Counsel. 9. Though the writ appeal is filed as against the order dated04.02.2011 passed in W.P. (MD) No.12784 of 2010, now, the issue has cometo a narrow compass, viz., whether the appellant/writ petitioner can bepermitted to withdraw the writ appeal or not. 10. The main objection of the learned Senior Counsel appearing forthe fifth respondent is that if the writ appeal is allowed to bewithdrawn, the finding given by the learned Single Judge, will getobliterated. We are not able to understand this argument of the learnedSenior Counsel appearing for the fifth respondent for the reason that whena writ appeal is withdrawn, automatically, the order of the learned SingleJudge comes into operation and certainly, the beneficiary of the order ofthe learned Single Judge is entitled to the benefit of the said orderpassed by the learned Single Judge and by the withdrawal of the writappeal, even the finding rendered by the learned Single Judge also willnot get nullified.

As such, we are not able to understand the base onwhich this argument is advanced by the learned Senior Counsel appearingfor the fifth respondent. But, the other aspect of the matter is that itis an admitted fact that an order has been passed in favour of the fifthrespondent and by virtue of the interim order obtained in the writ appeal, the appellant/writ petitioner had prevented the fifth respondent fromenjoying the benefit of the order passed in his favour. 11. As far as the argument of the learned Senior Counsel appearingfor the appellant/writ petitioner that since this Court, in W.P. Nos.12209of 2008, 6141 and 13865 of 2009, by order dated 09.06.2010 and in othercases also, had directed the parties concerned to go before the CivilCourt, the appellant/writ petitioner had gone before the Civil Court isconcerned, we are not able to accept the same for the reason that on thedate of filing the writ appeal itself, this was within the knowledge ofthe appellant/writ petitioner.

Apart from this, as per the order passed inW.P.Nos.12209 of 2008, 6141 and 13865 of 2009, the appellant/writpetitioner had filed a suit. In spite of this, he had filed the presentwrit appeal also. Yet another factor to be noted is that on the date offiling the writ appeal also, all these aspects were within the knowledgeof the appellant/writ petitioner and this cannot be disputed at all. In https://hcservices.ecourts.gov.in/hcservices/ 10spite of it, the appellant/writ petitioner had approached this Court andafter the writ appeal was posted for judgment, he had secured an order ofinjunction from the I Additional Sub-Court, Madurai, restraining theofficial respondent from granting Correspondentship / Secretaryship to thefourth defendant therein. Based on this, we have no hesitation to holdthat the conduct of the appellant/writ petitioner is deprecatory. Havingfull knowledge only, the appellant/writ petitioner had filed the writpetition and writ appeal and by getting interim order, the appellant/writpetitioner has prevented the other side from enjoying the order passed bythe departmental authorities and after the arguments in the writ appealwere over and when the writ appeal was posted for judgment, he obtained anorder of injunction in the Ciivl Court.

But, in our considered view, theeffect of withdrawal of the writ appeal and also, assuming for a momentthat the judgment in the writ appeal goes against the appellant/writpetitioner, the effect will be only one and the same. Under suchcircumstances, we are of the considered view that the appellant/writpetitioner shall be permitted to withdraw the writ appeal. 12. However, as held by the Hon'ble Apex Court at paragraph no.5 ofthe judgment reported in 2009 3 MLJ 300, we are duty-bound to mention theconsequence of the withdrawal of the writ appeal. By the withdrawal ofthis writ appeal, the order of the learned Single Judge passed in W.P.No.12784 of 2010 and also the order of the departmental authorities dated12.10.2010 will come into operation and the fifth respondent in the writappeal, will be entitled to get the benefit of the said orders. Thoughinterim orders have been granted in the writ appeal, in view of thewithdrawal of the writ appeal, the interim order granted by this Court inthe writ appeal by order dated 15.02.2011 and which has been continuedtill date, will become nullified and Miscellaneous Petitions also will beclosed.