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S. Dangaich Vs. Dr. Gayatri Vaish - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 35 of 1983
Judge
Reported in1986WLN(UC)542
AppellantS. Dangaich
RespondentDr. Gayatri Vaish
DispositionPetition dismissed
Cases ReferredRamchand v. Poker Ram
Excerpt:
civil procedure code - order 23 rue 1--application for withdrawal of suit--order on application not passed--held, it has not become effective and party is at liberty to withdraw it.;the application was submitted by the plaintiff and in my view until and unless an order is passed by the court on the application for withdrawal of the suit, it does not become effective and the remains pending. till a proper order is passed on the application the party is at liberty to withdraw the application of withdrawal.;revision dismissed - .....for withdrawing the application for withdrawal of the suit.3. the non-petitioner dr. gayatri vaish filed a suit against the petitioner in the court of addl. munsif (2), jaipur for rent and ejectment in that suit, on 14 10-1981 the plaintiff filed an application that she does not want to proceed with the case and the case may be consigned to records. no order was passed on this application on 14-10-1981. the defendant sought adjournment and the case was adjourned on a number of dates and no order was passed on that application. on 19-7-1982 the plaintiff filed another application that she does not want to press the application regarding non-pressing of her suit and the suit be decided according to law. the defendant objected to it and time was granted for arguments. on 3-9-1982, the.....
Judgment:

Gopal Kishan Sharma, J.

1. With the consent of both the parties, the revision petition is disposed of at this stage.

2. The petitioner has filed this revision petition against the order of the Addl. Munsif and Judicial Magistrate (2), Jaipur City, Jaipur dated 3-9-1982 by which he allowed the application of the non-petitioner for withdrawing the application for withdrawal of the suit.

3. The non-petitioner Dr. Gayatri Vaish filed a suit against the petitioner in the Court of Addl. Munsif (2), Jaipur for rent and ejectment In that suit, on 14 10-1981 the plaintiff filed an application that she does not want to proceed with the case and the case may be consigned to records. No order was passed on this application on 14-10-1981. The defendant sought adjournment and the case was adjourned on a number of dates and no order was passed on that application. On 19-7-1982 the plaintiff filed another application that she does not want to press the application regarding non-pressing of her suit and the suit be decided according to law. The defendant objected to it and time was granted for arguments. On 3-9-1982, the learned Addl. Munsif after hearing both the parties granted the application of the plaintiff dated 19-7-1982. The plaintiff was thus permitted to withdraw the application for withdrawal of the suit. It is against the order that the defendant has come in revision to this Court.

4. Mr. Bhandari, learned Counsel for the petitioner argued that once an application for withdrawal of the suit has been filed in the Court no order on that application is necessary. Once the application is filed for withdrawal of the suit, the suit is deemed to be withdrawn and dismissed. The second application for withdrawal of the suit is, therefore, not maintainable. In support of his arguments, he referred the case of Banarasidas and Anr. v. Mohd. Shofi and Anr. 1983 RLR 326.

5. In reply to this argument, Mr. Garg argued that the Court did not pass any order on the application dated 14-10-1981. The defendant took time to argue on that application. The case was adjourned on a number of dates. This shows that the Court itself fixed the application for hearing and order Had there been the view of the Court that mere presentation of the withdrawal application mean the disposal of the suit, the court would not have granted time to the defendant hearing on this application. After a number of months on 19-7-1982 the plaintiff submitted another application for withdrawal of previous application for withdrawal of the suit. So, it cannot be treated that mere submission of the application for withdrawal means that the suit has been withdrawn and no order was needed on that application. To support his arguments, he has cited (9) Ramchand v. Poker Ram 1984 RLR 303. This case is similar to the present case. Two applications were filed, one on 5-1-1983 for withdrawal of the appeal, and the other on 28-2-1983 for withdrawal of the application for withdrawal. That application was contested by the opposite-party on the ground that no withdrawal of the withdrawal application is permissible in law. This appeal was decided by Justice S.K. Mal Lodha who discussed in detail the legal aspect of this case and also discussed a number of cases of other High Courts. It seems that none of the parties cited the case Banarsidas (supra) before Justice S.K. Mal Lodha.

6. I have gone through both the cases cited above and with due respect I do not agree with the observations made in the case of Banarsidas (supra).

7. The application was submitted by the plaintiff, and in my view until and unless an order is passed by the Court on the application for withdrawal of the suit, it does not become effective and the suit remains pending. Till a proper order is passed on the application, the party is at liberty to withdraw the application of withdrawal. I am in agreement with the observations made in Ramchandra's case (supra).

8. Mr. Bhandari contended that there are two different views of this High Court, and as such for having a final decision in this matter the case be referred to a Division Bench, as both the cases are of Single Bench. I feel no necessity to refer the matter to a Division Bench. I am of the confirmed view that the view taken by Justice D.P. Gupta is not correct. While agreeing with the view of Justice S.K. Mal Lodha, I am of the opinion that there is nothing to interfere in the order of the Court below.

9. The revision petition is therefore, dismissed having no force.


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