Allowed

Sandeep Goel v. Smt. Ganeshwari Devi and Another

Allahabad HC12 Mar 2019WRIC/33980/2005

Case brief

AI extract

What is this about?

This writ petition challenged an order rejecting the plaintiff's application to withdraw a prior withdrawal application. The court set aside the lower court's order relying on Supreme Court precedent and held that withdrawal of a withdrawal application is maintainable. The suit was allowed to proceed.

What did the court decide?

The impugned order dated 13.4.2005 is set aside. The application to withdraw the withdrawal application is allowed. The suit is directed to proceed in accordance with law.

Sandeep Goel Vs Smt. Ganeshwari Devi and… — Civil Procedure and Limitation | Allahabad HC (2019)

¶1

Court No. - 59

¶2

Case :- WRIT - C No. - 33980 of 2005

¶3

Petitioner :- Sandeep Goel Respondent :- Smt. Ganeshwari Devi And Another Counsel for Petitioner :- Rajesh Gupta,Anuj Agarwal,Madan Mohan,Pankaj Mittal,Rupesh Gupta,S.K. Gupta,Shreya Gupta Counsel for Respondent :- S.C.,Bakhteyar Yusuf,P.K.Jain.,Sumit Daga

¶4

Hon'ble Surya Prakash Kesarwani,J.

¶5

Heard Ms. Shreya Gupta, learned counsel for the petitioner and Mr. Bakhteyar Yusuf, learned counsel for the respondents.

¶6

This petition has been filed under Article 227 of the Constitution of India praying to set aside the order dated 13.4.2005 in O.S. No.125 of 2005 (Sandeep Goel Vs. Smt. Gyaneshwari Devi and another) whereby the application (paper no.19 Ga) filed by the plaintiff-petitioner to withdraw the withdrawal application (paper no.18 Ka) was rejected and it was held that the suit stood withdrawn on the date of filing of the application (paper no.18 Ka).

¶7

Briefly stated facts of the present case are that the plaintiff instituted O.S. No.125 of 2005 on 8.2.2005. On the same day, the concerned court below passed an order fixing 9.3.2005 for filing written statements and 15.3.2005 for issues. After filing of the aforesaid suit, the plaintiff filed a withdrawal application (paper no.18 Ka) on 2.3.2005. After five days, on 7.3.2005, he filed another application (paper no.19 Ga) to withdraw the application dated 2.3.2005 (paper no.18 Ka). By the impugned order dated 13.4.2005, the Additional Civil Judge (S.D.), Court No.1, Muzaffarnagar rejected the application (paper no.19 Ga) and held that the suit stood withdrawn on the date of filing the application (paper no.18 Ka) i.e. on 2.3.2005.

¶8

Aggrieved with this order, the plaintiff-petitioner has filed the present petition.

¶9

Learned counsel for the plaintiff-petitioner submits that the view taken by the court below in the impugned order, is contrary to the law laid down by Hon'ble Supreme Court in the case of Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others 2011 2 SCC 705 (paragraph 4 to 8) and law laid

¶10

¶11

down by this Court in Civil Misc. Writ Petition Nos.23194 and 45358 both of 2010 (M/s. Auto Oil Company and another Vs. Indian Oil Corporation Ltd. and others) (paragraph 9, 10 and 11) decided on 13.5.2011.

¶12

Learned counsel for the respondents supports the impugned order.

¶13

I have carefully considered the submissions made by learned counsel for the parties.

¶14

The controversy raised in this petition is concluded by the judgment of Hon'ble Supreme Court in the case of Rajendra Prasad Gupta (supra) in which, Hon'ble Supreme Court held as under:-

¶15

"1. Heard learned counsel for the appellant and respondent Nos. 1 to 3. No one appeared for respondent No. 4.

¶16

2. This Appeal, by special leave, has been filed against the impugned judgment of the High Court of Allahabad dated 06.02.2004 passed in FAFO No.2103/2003.

¶17

3. It appears that the appellant was the plaintiff in Suit No. 1301 of 1997 before the Court of Civil Judge (Junior Division) Varanasi. He filed an application to withdraw the said suit. Subsequently, it appears that he changed his mind and before an order could be passed in the withdrawal application he filed an application praying for withdrawal of the earlier withdrawal application. The second application had been dismissed and that order was upheld by the High Court. Hence, this appeal by special leave.

¶18

4. The High Court was of the view that once the application for withdrawal of the suit is filed the suit stands dismissed as withdrawn even without any order on the withdrawal application. Hence, the second application was not maintainable. We do not agree.

¶19

5. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application.

¶20

6. In Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (1882), Mr. Justice Mahmood, the celebrated Judge of the Allahabad High Court, observed :-

¶21

"Courts are not to act upon the principle that every

¶22

¶23

procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed. "

¶24

7. The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena Vs. Bhim Sen & others, AIR 1966 Allahabad 84 FB, and we agree with this view.

¶25

8. Accordingly, we are of the opinion that the application praying for withdrawal of the withdrawal application was maintainable. We order accordingly.

¶26

9. In the result, the impugned judgment of the High Court is set aside and the Appeal is allowed. No costs.

¶27

10. The suit shall proceed and to be decided on merits, expeditiously."

¶28

(Emphasis supplied by me.)

¶29

The aforesaid judgment was followed by this Court in the case of M/s. Auto Oil Company (supra) and it was held that automatic dismissal of suit on presentation of application for withdrawal, cannot be accepted, until and unless same is pressed before the Court, and the Court in its turn proceeds to pass order as is envisaged under law.

¶30

In view of the legal position as aforestated, the impugned order dated 13.4.2005 in O.S. No.125 of 2005, passed by Additional Civil Judge (S.D.), Court No.1, Muzaffarnagar, cannot be sustained and is hereby set aside. The application (paper no.19 Ga) is allowed. The application dated 2.3.2005 (18 Ka) is dismissed as withdrawn. The concerned court below shall proceed in the suit in accordance with law.

¶31

Accordingly, the writ petition is allowed .

¶32

Order Date :- 12.3.2019 Vivek Kr.

Sandeep Goel v. Smt. Ganeshwari Devi and Another

Case brief

What is this about?

What did the court decide?

Sandeep Goel v. Smt. Ganeshwari Devi and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bhadohi Industrial Development Authority through Exec. Offi. Vs Tej Bahadur and Another

Union of India and Others Vs Magroo and Others

Liyaqat Ali Vs Smt. Mahtab Jahan and Others

Mohan Lal Vs Athar Mohammad and Another

Renu Chaudhari Vs State of U.P. and Others

Smt. Anjali Vs Principal Judge, Family Court , Allahabad and Another