Dismissed

Rajpal Singh v. Chandi (Since Deceased) and 7 Others

Allahabad HC17 Jul 2023A227/2707/2023

Case brief

AI extract

What is this about?

In this writ petition under Article 227, the High Court considered if an appeal could be withdrawn without the consent of the opposite party. The court distinguished a cited precedent noting that the benefit was to property shares in the other case but were not severable here, dismissing the petition.

What did the court decide?

None; the petition challenging the rejection of withdrawal application was dismissed.

Rajpal Singh Vs Chandi (Since Deceased) and… — Civil Procedure and Limitation | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:141148

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Court No. - 1

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Case :- MATTERS UNDER ARTICLE 227 No. - 2707 of 2023

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Petitioner :- Rajpal Singh Respondent :- Chandi (Since Deceased) And 7 Others Counsel for Petitioner :- Siddharth Shukla Counsel for Respondent :- Rahul Pandey

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Hon'ble Jayant Banerji,J.

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Heard learned counsel for the petitioner and Sri Rahul Pandey, learned counsel appearing for plaintiff-respondent no.4.

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The contention of the learned counsel for the petitioner is that the plaintiff-petitioner filed a suit for specific performance in respect of an agreement with regard to the suit property. The contention is that the suit was dismissed and thereafter the plaintiff filed an appeal being Civil Appeal No. 316 of 2016, in which an application was filed by the plaintiff-petitioner (paper No. 15-Ga) seeking withdrawal of the suit.

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By the impugned order dated 12.12.2022, the Additional District Judge, Court No. 14, Ghaziabad has rejected the application on the ground that without consent of the other plaintiffs-appellants, the appeal cannot be permitted to be withdrawn.

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The only contention of the learned counsel for the petitioner is that he does not want to contest the suit. In support of his contention, learned counsel has relied upon paragraph 34 of the judgement in the matter of Mihir Kumar Talukdar Vs. Pradip Kumar Sengupta and others; AIR 2011 (Cal) 211. Paragraph 34 of the judgement reads as under:-

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"34. I, therefore, hold that if one of several plaintiffs having an independent right to relief and which is severable from the right claimed by the other plaintiff(s) seeks to abandon his claim in the suit once and for all without reservation and such abandonment does not affect the right to relief of the coplaintiff(s), his/their consent would not be a sine qua non and the learned Court may, in its discretion, grant the prayer made before it on such terms as it considers just and proper supported with reason. Such an interpretation is intended to 'iron out the creases' and not alteration of the material of which the Code is woven."

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It is not the case of the petitioner that the plaintiff-petitioner has any independent right to relief which is severable from the right claimed by other plaintiffs. Moreover, despite iterated position of

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law in the aforequoted paragraph, the learned Judge observed that it appears from the plaint that the shares forming subject matter of the suit are in the individual names of the two plaintiffs and that the plaintiffs having independent but identical right to sue had joined in one suit because that was permissible in terms of Order 1 Rule 1.

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The contention of the learned counsel for the respondents is that the application for withdrawal cannot be allowed without the consent of the plaintiff-respondent and the plaintiff-respondent is opposed to withdrawal of the suit.

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The suit for specific performance filed by plaintiff-petitioner and plaintiff-respondent is in respect of a single property and as contended by the learned counsel for the petitioner a single agreement to sell was executed by the defendants-respondents. Evidently, the right of plaintiffs cannot be severed. The judgment aforesaid is, therefore, distinguishable in view of the facts of the present case.

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Further, with the plaintiff-respondent not consenting to the withdrawal of the suit, there is no error in the order impugned that would warrant interference.

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For the reasons aforesaid, this petition is dismissed .

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Order Date :- 17.7.2023 sfa/

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(Jayant Banerji, J)

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Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad

Rajpal Singh v. Chandi (Since Deceased) and 7 Others

Case brief

What is this about?

What did the court decide?

Rajpal Singh v. Chandi (Since Deceased) and 7 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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