Gujarat High Court
Jayantibhai @ Jayendrasingh Thakor vs Dalsukhbhai Ukabhai Chunara on 16 June, 2025
NEUTRAL CITATION
C/SCA/7645/2025 ORDER DATED: 16/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7645 of 2025
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JAYANTIBHAI @ JAYENDRASINGH THAKOR
Versus
DALSUKHBHAI UKABHAI CHUNARA & ORS.
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Appearance:
SHASHVATA U SHUKLA(8069) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 16/06/2025
ORAL ORDER
1. Heard learned advocate Mr. Shashvata U. Shukla for the petitioner.
2. The present application is filed under Article 227 of the Constitution of India, seeking the following relief:-
(A) YOUR LORDSHIPS may be pleased to pass an order quashing and setting aside the impugned order dated 14.12.2024 passed below Exh.1 by the 21st Additional Chief Judicial Magistrate, Vadodara, (Annexure-A) and impugned order dated 14.12.2024 passed below Exh. 120 by the Learned Civil Judge (S.D.), Vadodara (Annexure-B);
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation, and execution of the impugned order dated 14.12.2024 passed below application Exh.1 by the 21st Additional Chief Judicial Magistrate, Vadodara (Annexure-A) and impugned order dated 14.12.2024 passed below Exh. 120 by the Learned Civil Judge (S.D.), Vadodara (Annexure-B) and direct the Respondents to maintain status quo with respect to the suit properties;
(C) YOUR LORDSHIPS may be pleased to grant an ex-parte ad- interim reliefs in terms of paragraph No.(B) above; Page 1 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025
NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined (D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.
3. THE SHORT FACTS OF THE CASE 3.1. Respondent No. 1 herein is the original plaintiff who had instituted Regular Civil Suit No. 979 of 2010 against the present petitioner, who is Defendant No. 2, and the rest of the respondents are co-defendants in the suit. 3.2. The suit filed seeking a declaration and injunction as prayed for in the suit, wherein an order of status quo was granted by the Trial Court vide its order dated 20.07.2017 in relation to the title and possession of the suit properties. For reasons best known to the plaintiff, he filed a withdrawal purshis dated 02.12.2024, thereby requested the Trial Court to allow the plaintiff to unconditionally withdraw the suit. 3.3. It appears that the Trial Court has recorded such purshis on very date when presented/submitted. Further, Defendant No. 2 was not given an advance copy of the purshis filed by the plaintiff.
3.4. The plaintiff executed a registered sale deed on Page 2 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined 05.12.2024 in favor of a third party in relation to the suit property.
3.5. Having came to know about the withdrawal purshis, Defendant No. 2 seriously objected to such request made by the plaintiff by filing its application dated 14.12.2024, contending, inter alia, that during the pendency of the suit and the order of status quo operating, the plaintiff executed the sale deed, thereby committing a breach of the injunction of the order passed by the Trial Court. The defendant No.2 thus intended to initiate action against plaintiff under Order XXXIX Rule 2A of Civil Procedure Code, 1908 (hereinafter referred to as 'CPC').
3.6. The Trial Court, vide its order dated 14.12.2024, kept the suit in the Lok Adalat and on the basis of the said withdrawal purshis, disposed of the suit as withdrawn. 3.7. Consequently, on the very same day, the application filed by Defendant No. 2 was disposed of by observing that nothing further is to be done in light of the withdrawal order passed by the Trial Court.
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4. Being aggrieved and dissatisfied with this set of orders, the present writ application came to be filed.
5. SUBMISSIONS OF THE PETITIONER - DEFENDANT NO.2 5.1. Learned advocate Mr. Shukla would submit that the orders impugned in the present application are ex-facie illegal, erroneous, perverse, arbitrary, and contrary to the provisions of law and require to be interfered with by this Court while exercising its supervisory jurisdiction. 5.2. Learned advocate Mr. Shukla would further submit that the plaintiff could not have been permitted to withdraw the suit inasmuch as the withdrawal purshis filed below Exhibit 119 was never served upon the Defendant. 5.3. Learned advocate Mr. Shukla would further submit that the withdrawal purshis was submitted on 02.12.2024 and the suit was withdrawn by the Trial Court vide its order dated 14.12.2024, and prior thereto, on 05.12.2024, the plaintiff executed the registered sale deed in relation to the subject matter of the suit property in favor of a third party, whereby the plaintiff committed a breach of the injunction order passed Page 4 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined by the Trial Court.
5.4. It is submitted that since the plaintiff had committed a breach of the order of status quo, the defendant was entitled to initiate contempt proceedings under Order XXXIX, Rule 2A of CPC, but due to the impugned orders, such right was taken away from him.
5.5. Learned advocate Mr. Shukla would further submit that as per the provisions of Order XXIII Rule 1 of the CPC, the day on which the withdrawal purshis was filed by the plaintiff should not be considered as the date of withdrawal of the suit, but the date on which the Trial Court passed the impugned order is the date required to be considered for giving effect to the withdrawal of the suit, and in between, the plaintiff, having executed the sale deed, breached the order of the status quo, for which the plaintiff was required to be punished in accordance with law.
5.6. Learned advocate Mr. Shukla would further submit that as the defendant was not given a liberty to object to the withdrawal of the suit, having not received an advance copy of Page 5 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined the withdrawal purshis from the plaintiff, the orders impugned are in violation of the principles of natural justice and require to be quashed and set aside.
5.7. Lastly, learned advocate Mr. Shukla would submit that though the defendant has not prayed for costs to be recovered from the plaintiff, which was his right to claim even after the suit is allowed to be withdrawn unconditionally, the defendant may be given the liberty to approach the Trial Court whereby he can claim costs from the plaintiff. He has fairly conceded that such contention of recovering costs was neither raised before the Trial Court nor in the present writ application but, being purely a question of law, is raised by him during the course of his argument.
5.8. Making the above submissions, learned advocate Mr. Shukla requests this Court to allow the present writ application.
6. No order and further submissions are made.
7. Points for Determination (I) Whether, in the facts and circumstances of Page 6 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined the case, any error was committed by the Trial Court in permitting the plaintiff to withdraw the suit unconditionally despite the objection raised by the defendant?
(II) Whether the date of submission of the withdrawal purshis by the plaintiff i.e. 02.12.2024, should be considered as the date of withdrawal of the suit, or the date of passing of the order by the Trial Court i.e. 14.12.2024, whereby it formally passed an order of withdrawal of the suit? ANALYSIS
8. The issue germane in the present application is no longer res integra, having already been answered by the Hon'ble Supreme Court of India, first in the case of Shiv Prasad v. Durga Prasad, reported in (1975) 1 SCC 405, wherein it was held thus:-
"12. Even on the interpretation of Rule 89(2) which we have put we are not prepared to accept the contention put forward on behalf of the appellant that an application under Rule 90 does not stand withdrawn until an order to that effect is recorded by the Court. The applicant merely has to convey to the Court that he is withdrawing his application under Rule 90 which he had filed prior to the making of the application under Rule 89. Thereupon he becomes entitled to make the latter application. Every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the Court. The act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application. Respondent 1 has clearly done so here not only by mentioning in his application under Rule 89 that he was withdrawing his application under Rule 90 but also by filing a separate application to that effect, in which not only the statement as to the withdrawal of Page 7 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined the application under Rule 90 was made but a prayer for the refund of Rs 2000 was also made. The steps taken on behalf of Respondent 1 in Miscellaneous Case No. 3/ 1967 even after the filing of Miscellaneous Case No. 1/1968 were clearly superfluous and of no effect. The steps taken did not nullify the withdrawal made by Respondent 1 of his application under Rule 90 and did not make the withdrawal merely on that account ineffective. Even if any ambiguity was created by the taking of such steps, later on March 9, 1968 in clearest language it was intimated on behalf of Respondent 1 that he was not pursuing his application under Rule
90. It was only then that the Court made a formal order recording its dismissal. In our judgment on the facts and in the circumstances of this case, the order of the Court made on March 9, 1968 had the effect of merely recording the withdrawal of the application under Rule 90 which was already effectively made on January 1, 1968. Even without that order, the withdrawal was effective on that date."
(Emphasis supplied)
9. The aforesaid principle was again reiterated by the Hon'ble Supreme Court in the case of Anurag Mittal vs. Shaily Mishra Mittal, reported in (2018) 9 SCC 691, wherein, taking note of the provisions of Order 23, Rule 1 of the CPC, the Hon'ble Supreme Court held as under:-
15. In case of a dissolution of marriage, a second marriage shall be lawful only after dismissal of the appeal. Admittedly, the marriage between the appellant and the respondent was on 6-12-2011 i.e. before the order of withdrawal was passed by the Court on 20-12-2011 [Anurag Mittal v. Rachna Mittal, 2011 SCC OnLine Del 5694] . There is no dispute that the application for withdrawal of the appeal was filed on 28-11-2011 i.e. prior to the date of the marriage on 6-12-2011. We proceed to consider the point that whether the date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. Order 21 Rule 89(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") provides that unless an application filed under Order 21 Rule 90 CPC is withdrawn, a person shall not be entitled to make or prosecute an application under Order 21 Rule 89 CPC.Page 8 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025
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16. In Shiv Prasad v. Durga Prasad [Shiv Prasad v. Durga Prasad, (1975) 1 SCC 405] , the contention of the appellant therein that an application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the effect is recorded by the court, was not accepted. It was held that every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting the withdrawal of the application. This Court concluded that the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application.
17. The High Court of Bombay in Anil Dinmani Shankar Joshi v. Panvel Municipal Council [Anil Dinmani Shankar Joshi v. Panvel Municipal Council, 2003 SCC OnLine Bom 24, paras 3-4 : AIR 2003 Bom 238, p. 239] followed the judgment of this Court in Shiv Prasad [Shiv Prasad v. Durga Prasad, (1975) 1 SCC 405] and held that the said judgment is applicable to suits also. The High Court recognised the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would be complete as soon as the plaintiff files his purshis of withdrawal.
18. Order 23 Rule 1(1) CPC enables the plaintiff to abandon his suit or abandon a part of his claim against all or any of the defendants. Order 23 Rule 1(3) CPC requires the satisfaction of the Court for withdrawal of the suit by the plaintiff in case he is seeking liberty to institute a fresh suit. While observing that the word abandonment in Order 23 Rule 1(1) CPC is "absolute withdrawal" which is different from the withdrawal after taking permission of the court, this Court held as follows [K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] :
(Kokila case [K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] , SCC pp. 463-64, para 12) "12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty Page 9 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined being granted by the court enables the plaintiff to avoid the bar in Order 2 Rule 2 and Section 11 CPC."
19. Order 23 Rule 1(1) CPC gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that Order 23 Rule 1 CPC is applicable to appeals as well and the appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. [Bijayananda Patnaik v. Satrughna Sahu, (1964) 2 SCR 538 at p. 550 : AIR 1963 SC 1566, p. 1571, para 7]. Therefore, the appeal is deemed to have been withdrawn on 28-11-2011 i.e. the date of the filing of the application for withdrawal. On 6-12-2011 which is the date of the marriage between the appellant and the respondent, Ms Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5(i) is not attracted and the marriage between the appellant and the respondent cannot be declared as void."
(Emphasis supplied)
10. Thus, in view of the aforesaid clear pronouncement of law, the date of the withdrawal purshis is considered to be the date of withdrawal of the suit and not the date of the formal order of withdrawal of suit passed by the Trial Court.
11. In the present case, the plaintiff had filed the withdrawal purshis below Exhibit 119 on 02.12.2024, which was also recorded by the Trial Court on the very same day, whereas a formal order for the withdrawal of the suit came to be passed by the Trial Court by keeping the suit in the Lok Adalat on 14.12.2024.
12. So, in view of the aforesaid position of law, the deemed Page 10 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined date of withdrawal of the suit in the present case would be 02.12.2024 and not 14.12.2024, as contended by the learned advocate Mr. Shukla.
13. Another limb of the argument of the learned advocate Mr. Shukla would be that no opportunity was given to the defendant No.2 to object the withdrawal of the suit by the plaintiff, as defendant No.2 having not been given a copy of the withdrawal purshis. As per the settled legal position of law, once a plaintiff decides to withdraw his suit unconditionally, as per Order XXIII, Rule 1 of the CPC, the Court has to grant such permission as sought for by the plaintiff, irrespective of any objection which may be raised by the defendant. So, in view of same, defendant No.2 can not cry foul to have not been heard because at time of passing of the order, he was aware about withdrawal purshish so filed by plaintiff. In any case, defendant No.2 could not complaint of violation of principle of natural justice when he had no right to object withdrawal of suit.
14. At this stage, it is profitable to place reliance on the Page 11 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined decision of the Hon'ble Apex Court in the case of Anil Kumar Singh Vs. Vijay Pal Singh and others reported in (2018) 12 SCC 584, more particularly in Para- 15, 16, 23-28, which reads as under :-
"15) The short question, which arose for consideration before the High Court in the writ petition filed by defendant No.1 (respondent No.1 herein) was whether the two Courts below were justified in allowing the application filed by the appellant (plaintiff) under Order XXIII Rule 1 of the Code and thereby justified in permitting the appellant (plaintiff) to withdraw the suit.
16) In other words, the only question, which the High Court was called upon to examine in the writ petition, was whether the appellant's (plaintiff's) application filed under Order XXIII Rule 1 of the Code praying for permission to withdraw the suit was rightly allowed by the Trial Court or not.
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23) In our considered opinion, when the plaintiff files an application under Order XXIII Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cost to him by the plaintiff as provided in sub- rule (4).
24) The reason is that while making a prayer to withdraw the suit under Rule 1(1), the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit without asking for anything more can, therefore, be always permitted. In other words, the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cost for filing a suit against him.
25) However, when the plaintiff applies for withdrawal of the suit along with a prayer to grant him permission to file a fresh suit on the same subject matter as provided in sub-rule (3) of Rule 1 then in such event, the defendant can object to such prayer made by the plaintiff. In such event, it is for the Court to decide as to whether the permission to seek withdrawal of the suit should be granted to the plaintiff and, if so, Page 12 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined on what terms as provided in sub-rule (3) of Rule 1.
26) Now coming to the facts of the case, we are of the considered opinion that the Trial Court and the Revision Court (A.D.J) were justified in permitting the appellant (plaintiff) to withdraw the suit under sub-rule (1) of Rule 1. In other words, since the appellant had applied for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was justified in permitting withdrawal of the suit subject to the appellant paying cost of Rs.350/- to respondent No.1 (defendant No.1). Such order, in our view, was in conformity with sub-rule (3) of Rule 1 and was rightly upheld by the Revision Court.
27) The High Court, however, committed jurisdictional error in allowing the defendant's writ petition by finding fault in the orders of the Trial Court and Revision Court and giving directions to the plaintiff to place defendant No.1 in possession of the suit land without there being any basis whatsoever.
28) As mentioned above, the High Court should have seen that the scope of writ petition was confined to examine the question as to whether the Trial Court and Revision Court were justified in allowing the application filed by the plaintiff under Order XXIII Rule 1 of the Code and to decide this question, the High Court should have confined its inquiry to examine as to whether the requirements of Order XXIII Rule 1 were complied with or not but not beyond it."
(emphasis supplied)
15. This Court has also had an occasion to answer the issue which has been raised by the learned advocate Mr. Shukla, in the case of Rameshbhai Chhelshankar Oza Himself & As Director Of Versus Deven Jagnath Joshi & Ors. in Appeal from Order No. 43 of 1999 having decided on 21-02-2025, wherein, held as under:-
"16. Thus, what is deduced from the ratio laid down by the Hon'ble Apex Court in the case of Anil Kumar Singh (supra) as well as the above cited decisions of the Co-ordinate Bench of this Court, that in a case where the plaintiff has Page 13 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined prayed for unconditionally withdrawal of his suit then, the defendant has no right to object such withdrawal of the suit except praying for costs.
(Emphasis supplied)
16. Thus, in view of the aforesaid facts and the position of law as it stands today, there is no merit in the submissions of the learned advocate Mr. Shukla, which are required to be turned down.
17. In light of what has been stated hereinabove, this Court is not in agreement with the submissions made by the learned advocate Mr. Shukla that there was a breach of the injunction order of the Trial Court at the instance of the plaintiff in having executed the sale deed in favor of a third party on 05.12.2024. As such, when the plaintiff had submitted the withdrawal purshis on 02.12.2024, which was also recorded by the Trial Court, the suit is deemed to have been withdrawn on that day.
18. Consequently, when the suit is disposed of as withdrawn unconditionally, the order of status quo stood vacated automatically on 02.12.2024 itself. Undisputedly, the plaintiff having executed the sale deed on 05.12.2024, there is no Page 14 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined question of any breach of injunction arising on his part, as alleged.
19. Lastly, regarding the request by the learned advocate Mr. Shukla to permit the defendant to raise the issue of costs to be recovered from the plaintiff, it has been fairly admitted by the learned advocate Mr. Shukla that such issue was neither pressed into service before Trial Court nor, in fact, raised in the writ application but was raised for the first time during the course of his argument.
19.1. Since the defendant has not pressed such issue before the Trial Court, it would not be appropriate for this Court to opine on such an issue but to relegate the defendant to the Trial Court to raise such issue of recovery of costs from the plaintiff if permissible in law.
19.2. So, if such a plea will be raised by the defendant before the Trial Court seeking cost from plaintiff, the same may be decided by the Trial Court after giving an opportunity of hearing to all the parties concerned and decide it in accordance with law, as this Court would not like to express Page 15 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined any opinion so far as the imposition of costs is concerned.
20. CONCLUSION
21. In light of the aforesaid, the issues germane in the writ application are answered thus:
21.1. There is no illegality, irregularity, and/or any erroneous or perverse finding on the part of the Trial Court in allowing the withdrawal of the suit by accepting the withdrawal purshis of the plaintiff and turn down objection of defendant No.2 by passing orders impugned in writ application.
21.2. It is hereby held that the suit is deemed to have been withdrawn on 02.12.2024, i.e., the date of submission of the withdrawal purshis, and not the date of the impugned order i.e. 14.12.2024 whereby the Trial Court formally passed an order for the withdrawal of the suit. Consequently, plaintiff has not committed any breach of injunction order passed by Trial Court.
22. Thus, as per the aforesaid observations, discussion, and reasons, I do not find any merit in the present application, which is required to be rejected and is hereby REJECTED. No Page 16 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025 NEUTRAL CITATION C/SCA/7645/2025 ORDER DATED: 16/06/2025 undefined order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 17 of 17 Uploaded by MOHD MONIS(HC01900) on Tue Jun 17 2025 Downloaded on : Tue Jun 17 22:59:03 IST 2025