Allahabad High Court
Rajpal Singh vs Chandi (Since Deceased) And 7 ... on 17 July, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:141148
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 2707 of 2023
Petitioner :- Rajpal Singh
Respondent :- Chandi (Since Deceased) And 7 Others
Counsel for Petitioner :- Siddharth Shukla
Counsel for Respondent :- Rahul Pandey
Hon'ble Jayant Banerji,J.
Heard learned counsel for the petitioner and Sri Rahul Pandey, learned counsel appearing for plaintiff-respondent no.4.
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.
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application on the ground that without consent of the other plaintiffs-appellants, the appeal cannot be permitted to be withdrawn.
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:-
"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 co-plaintiff(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."
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 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.
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.
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.
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.
For the reasons aforesaid, this petition is dismissed.
Order Date :- 17.7.2023
sfa/
(Jayant Banerji, J)
