Jeera Devi And Another vs Additional District Judge Court ...
2023 Latest Caselaw 14541 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R.    
 
Court No. - 64
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4747 of 2019
 

 
Petitioner :- Jeera Devi and another
 
Respondent :- Additional District Judge, Court No.12, Varanasi and others
 
Counsel for Petitioner :- Brij Raj
 
Counsel for Respondent :- Shambhu Nath, Pratik J. Nagar, Triveni Shanker
 

 
Hon'ble J.J. Munir,J.

This is a petition under Article 227 of the Constitution of India preferred by Smt. Jeera Devi and Ghanshyam Patel, third parties to Original Suit No. 154 of 1999, Munnan Devi v. Smt. Amrawati Devi, who have been denied leave to continue the suit on the basis of assignment pendente lite and further, are faced with an order permitting withdrawal of the suit by the plaintiff. This order turning tables for the petitioners has been passed in an appeal by the Additional District Judge, Court No. 12, Varanasi, reversing the Trial Court, which had granted leave to the petitioners to continue the suit and declined permission to the plaintiff to withdraw it.

2. The facts giving rise to this petition, in necessary detail, are these :

Plot No. 40 admeasuring 0.243 hectare and Plot No. 156 admeasuring 0.72 decimal, situate in Village Mauza Saraimugal, Pargana Athagaon, Tehsil Pindra, District Varanasi was recorded in the name of one Smt. Munnan Devi. She was a co-sharer in the two plots to the extent of a half share along with her co-tenure holder, Smt. Ramdei Devi, wife of Ramdas. One Smt. Amrawati Devi, wife of Late Panna Lal, claimed that Smt. Munnan Devi had executed a sale deed of her half share in the plots of land above mentioned on 09.10.1998. Smt. Amrawati Devi got her name recorded as a co-tenure holder along with Smt. Ramdei Devi, after mutating out the name of Smt. Munnan Devi in the revenue records on 11.08.1999. This was done on the basis of the sale deed dated 09.10.1998. On 08.02.1999, Smt. Munnan Devi brought a prompt action against Smt. Amrawati Devi, seeking a declaration that the sale deed dated 09.10.1998 was null and void, with a prayer that the declaration granted be communicated to the Sub-Registrar, where the deed had been registered for recording the declaration. A permanent injunction was also claimed against Smt. Amrawati Devi to the effect that the defendant be restrained from interfering with the plaintiff's title and possession in the suit property or otherwise creating an obstruction in any manner, and further not to destroy the standing crops in the suit property. The aforesaid suit brought by Smt. Munnan Devi against Smt. Amrawati Devi was numbered on the file of the Civil Judge (Junior Division) Haveli, Varanasi as Original Suit No. 154 of 1999. The short case of Smt. Munnan Devi in the suit was that the impugned conveyance dated 09.10.1998 was not her deed. It had been got executed by Smt. Amrawati Devi through the agency of an imposter, a woman, different from Smt. Munnan Devi. The sale deed was, therefore, impugned as a void document.

3. On 03.07.2000, a written statement was filed by Smt. Amrawati Devi, contesting the plaintiff's case. It would not be material, for the purpose of this petition, to enumerate what her defence was. Smt. Munnan Devi put in a replication on 29.08.2000. On 30.08.2000, the Trial Court struck issues, a total of seven. What the issues were is also not relevant for the purpose of this petition. The sole plaintiff, Smt. Munnan Devi, was examined as P.W.1. She testified in the dock on 11.02.2003 and 17.07.2003. Pending suit, Smt. Munnan Devi executed two sale deeds - one in favour of Smt. Jeera Devi, conveying her half share in Plot No. 156, that is to say, the area of 0.298 hectare out of the total of 0.596 hectare; and the other in favour of Ghanshyam Patel, conveying her half share in Plot No. 40 admeasuring 0.121 hectare out of the total of 0.243 hectare. Both these sale deeds were executed on 21.05.2011 and admitted to registration by the Sub-Registrar, Pindra, Varanasi on 23.05.2011. On the 9th of February, 2013, Smt. Munnan Devi passed away, while the suit was still pending.

4. On 15.04.2013, Smt. Phulpatti Devi, daughter of Smt. Munnan Devi, applied to be substituted in place of the sole plaintiff. The substitution application was granted by the Trial Court on 05.07.2013. Smt. Phulpatti Devi, the substituted plaintiff, seems to have prosecuted the suit for a period of approximately five years until 05.04.2018, when she made an application under Order XXIII Rule 1 of the Code of Civil Procedure, 19081 seeking to unconditionally withdraw the suit. The aforesaid application is numbered on the record of the Trial Court as Paper No. 45ग.

5. Close on heels of the sudden termination of action by Smt. Phulpatti Devi, Smt. Jeera Devi filed an application bearing Paper No. 48क under Order XXII Rule 10 of the Code, seeking leave of the Court to continue the suit.

6. On 22.08.2018, Smt. Jeera Devi filed objections to the application dated 05.04.2018 made by Smt. Phulpatti Devi, seeking to withdraw the suit. On the 4th of July, 2018, Ghanshyam Patel made an application 54क under Order XXII Rule 10 of the Code, seeking leave of the Court to continue the suit. On 13.07.2018, Smt. Jeera Devi and Ghanshyam Patel made an application, seeking recall of the order granting substitution in favour of Smt. Phulpatti Devi, but no orders were passed on the said application by the Trial Court. The Trial Court, by its order dated 04.09.2018, allowed the applications 48क and 54क made by Smt. Jeera Devi and Ghanshyam Patel, respectively, seeking leave to continue the suit and rejected the application 45ग made by Smt. Phulpatti, praying for withdrawal of the suit.

7. Smt. Phulpatti Devi preferred Misc. Civil Appeal No. 143 of 2018 to the District Judge of Varanasi under Order XLIII Rule 1(l) of the Code, seeking reversal of the order dated 04.09.2018 passed by the Additional Civil Judge (Junior Division) Court No. 7, Varanasi. The appeal, upon assignment, came up for determination before the Additional District Judge, Court No. 12, Varanasi on 04.05.2019, who proceeded to allow the appeal, set aside the order dated 04.09.2018, rejected the two applications seeking leave to continue the suit and accepted Smt. Phulpatti Devi's application to withdraw.

8. Aggrieved by the order dated 04.05.2019, Smt. Jeera Devi and Ghanshyam Patel have instituted this petition under Article 227 of the Constitution.

9. Heard Mr. Atul Dayal, learned Senior Advocate assisted by Mr. Brij Raj, learned Counsel for the petitioners, Mr. Shambhu Nath, learned Counsel appearing on behalf of respondent no. 3 and Mr. Triveni Shanker along with Mr. Awadhesh Kumar, learned Counsel appearing for respondent no. 4.

10. The question that falls for consideration in this case is : Whether the fact notwithstanding that a colluding plaintiff and a defendant may have contrived to defeat a third party's rights and the plaintiff, to effectuate that purpose, makes an application to unconditionally withdraw the suit under Order XXIII Rule 1 of the Code, can the third party in jeopardy be permitted to be substituted for the withdrawing plaintiff and granted leave to prosecute the suit; or in any event, impleaded as a plaintiff under Order I Rule 10 of the Code and permitted to pursue the suit?

11. Mr. Atul Dayal, learned Senior Advocate has argued that the right to withdraw is not absolute under Order XXIII Rule 1 of the Code and the withdrawal becomes effective once the Court passes an order. This is for the reason that the withdrawal is not without its entailed consequences, the most obvious being an order on the item of costs. He submits that till the Court makes that order, the Court cannot be said to have become functus officio and the suit struck off the file, merely because an unconditional withdrawal has been prayed by the plaintiff, lodging an application for that purpose.

12. The second limb of the submission is that if the Court can see that the application for unconditional withdrawal, assuming that it otherwise operates ipso facto as a withdrawal of the suit, is a device to defeat the interest of a third party, who has come forward either through an application seeking impleadment under Order I Rule 10 of the Code or an application under Order XXII Rule 10, seeking leave to pursue the suit, the Court ought not to permit the plaintiff to withdraw the suit. He submits that if in the face of a position like this, the plaintiff is permitted to withdraw the suit, bringing it to a terminus, two consequences would inevitably follow : the first is that the third party whose rights are at stake would fall into the peril of being defeated about those rights without a trial; and, the second, that the third party would be, per compulsion, driven to bring his own action, which would inevitably lead to multiplicity of proceedings.

13. Mr. Dayal, in support of his submissions, has placed reliance upon a decision of this Court in Meera Rai v. Additional Sessions Judge and others2. Briefly put, in Meera Rai (supra), the facts were that the plaintiff brought a suit for a declaration that the suit property, a land measuring approximately 1800 square feet, was a common passage that was illegally sold by one Basant Kumar in favour of the defendants first set. The plaintiff asked for a permanent injunction against the first defendant, restraining her from raising any construction over the suit property. Defendant no. 1 to the suit contested it. Pending suit, the plaintiff made an application to withdraw the suit, saying therein that he had sold his house situate in Plot No. C9 to a third party, and that he did not require the suit property as two roads were there to access the house that he had sold. Above all, he was left with no right, title or interest in the suit property, because he had already sold it. Before an order could be passed on the withdrawal application, an application under Order XXII Rule 10 of the Code appears to have been filed by the purchasers to permit them to prosecute the suit, as rights to the suit property had been assigned to them. The said application was contested by defendant no. 1, who said that no right in the suit property came to the purchasers, who now claim through original plaintiff. The Trial Court allowed the application under Order XXII Rule 10 of the Code and dismissed the withdrawal application. A miscellaneous appeal from the said order was dismissed by the District Judge. Three of the many contentions that were urged before this Court in Meera Rai need to be noticed and that could be best done by quoting from the report, the way the contentions were urged :

4. Challenging the said order, the Misc. Appeal No. 37 of 2014 was filed which was dismissed on 9.12.2016 and hence this petition.

5. To challenge the order of substitution, learned Counsel for the petitioner vehemently urged :

(i) The application moved by the respondents 2 to 5 claiming interest in the suit property was in fact an amendment application filed under Order 6 Rule 17 C.P.C. as they had prayed to delete the name of the plaintiff and amend the array of parties. The said application was wrongly treated by the Courts below as substitution application under Order 22 Rule 10 C.P.C.

(ii) The filing of substitution application under Order 22 Rule 10 C.P.C. would require leave of the Court and for granting such leave, the Court has to apply its mind as to whether any right or interest had devolved upon the person seeking substitution. There is no prayer seeking leave in the application 27 Ga/1 moved by the transferees of the original plaintiff namely the applicants and as such the order of substitution cannot be sustained.

(iii) The trial Court had mechanically allowed the said application without giving any reasoning for the grant of leave. In absence of reasons, the order impugned cannot be sustained.

(iv) The withdrawal application moved by the plaintiff was prior to filing of the substitution application by the respondents 2 to 5. The effect of moving of the withdrawal application would be that the suit automatically stood withdrawn and in absence of any suit being pending as on the date of filing of the application, the application of respondent No. 2 to 5 could not be entertained. In other words. it is submitted that with the moving of the withdrawal application, withdrawal was automatic, no order was required to be passed on the said application. Reliance is placed upon the judgment of this Court in Ram Palat Chaturvedi (Deceased) By lrs v. Chandra Bali Shastri and another, (2008) 1 ARC 143.

(v) Further, in any case, in the event of assignment of any right or interest in the suit property, the assignees may be substituted but the name of the assignor would not be deleted from the array of parties. With reference to the amended plaint (appended with supplementary-affidavit) it is vehemently contended by learned Counsel for the petitioner that with the amendment of plaint i.e. deletion of the plaintiff, it would be a new suit. Any transfer by the plaintiff during the pendency of the suit though gives right to the assignor to pursue the suit under Order 22 Rule 10, with the leave of the Court, but the said suit cannot be pursued as a new suit. As no cause of action survives with the applicants/respondents they may be permitted to bring the fresh suit but they could not have been impleaded/substituted in the earlier suit more so when it already stood withdrawn.

(vi) The contention is that the plaintiff is dominus litus, it is his wish to continue his suit and the Court cannot compel him to pursue the suit that too when he moved a withdrawal application under Order 23 Rule 1 C.P.C.

(vii) The Act of deletion of name of the original plaintiff itself establishes that it was an amendment application seeking amendment of plaint by the persons who claimed to have got right and interest in the suit property. Reliance is placed upon the judgment of Apex Court in Hafiz Mushtaq and others v. Mohammad Idris and others, 1965 All LJ 828.

(viii) The suit filed by the predecessor of defendant No. 2 (late Kedarnath Singh) filed against the Cooperative society namely Original Suit No. 978 of 1993 is pending consideration. No relief of cancellation of sale-deed dated 5.6.2012/6.6.2012 executed in favour of defendant No. 1 had been sought by the original plaintiff namely Hemant Kumar Agarwal. In view of the registered sale-deed being in existence, the applicants/subsequent purchasers cannot seek a relief of declaration and injunction.

(ix) Lastly, it is submitted that the right to sue cannot be transferred under Section 6(e) of The Transfer of Property Act. In the application for substitution/impleadment based on the sale-deed of the plaintiff the plea regarding transfer of alleged Rasta could not have been entertained as it would only be a transfer of right to sue for the said Rasta. Reliance is placed upon the judgment in the case of Ch. Sajjan Mal v. Bodh Raj Ramkishan Mal and others, AIR 1934 Pesawar 89. Moreover, no such right has been transferred in favour of the applicants by the Original Plaintiff. The alleged Rasta (subject-matter of instant suit) is not even shown in the sketch map which gives description of property and is part of the sale-deed of the applicants.

6. Learned Counsel for the respondents, on the other hand, submits that by the sale-deed dated 19.10.2013, all rights and interest in the suit property were devolved upon the applicants. Under Order 22 Rule 10 of the Code of Civil Procedure, they have a right to pursue the suit on the doctrine of lis pendens. Any denial thereof would render them non-suited. Moreover, by the instant suit, the plaintiff sought declaration of easementry rights i.e. the right to way to approach his house by a common road which has been obstructed by the defendant No. 1. Reliance is placed upon the judgment of Apex Court in Amit Kumar Shaw and another v. Farida Khaton and another, AIR 2005 SC 2209 and in Sharadamma v. Mohammed Pyrejan (Dead) through L.Rs. and another, 2015 (6) AWC 5721, to submit that the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral.

14. Repelling the contentions aforesaid urged on behalf of the defendant-petitioner, it was held :

14. The first argument of the learned Counsel for the petitioner that with the withdrawal of the present suit by application under Order 23 Rule 1 C.P.C. moved by the plaintiff, the assignees lost their right for substitution is found devoid of force in as much as no order was required to be passed on the withdrawal application. The decision of this Court in Ram Palat Chaudhary (supra) relied by the learned Counsel for the petitioner itself observes that though with the moving of withdrawal application on the part of the plaintiff, the withdrawal becomes effective but the order passed by the Court on the said application is to give effect to the consequences arising out of the withdrawal (reference has also been made to Sheikh Khalikuzzama (D) through L.R.s and others v. Sheikh Akhtaruzzaman (D) and others, 2004 (2) AWC 1636 and Smt. Raisa Sultana Begam and others v. Abdul Qadir and others, 1966 AIR (All) 318).

15. In case, the said argument of the learned Counsel for the petitioner is accepted it would result in multiplicity of litigation in as much as the applicants would be required to bring a fresh suit for declaration on the same cause of action put forth by the original plaintiff. This cannot be the intention of the provisions as contained in Order 23 Rule 1 C.P.C. Thus it is held that in order to give effect to the consequences of withdrawal, a specific order is to be passed by the Court concerned on the withdrawal application. Even otherwise, on the principle of doctrine of lis pendens and the provisions as contained in Order 22 Rule 10 C.P.C. the transferees could not be denied substitution. On this principle also it cannot be said that the trial Court had erred in dismissing the withdrawal application filed by the original plaintiff in view of pending substitution application of the subsequent transferees.

16. The said view taken by this Court is fortified from the decision of the Apex Court in Amit Kumar Shah (supra) wherein it has been held that the transferee though is not entitled, as of right, to be impleaded in the suit, however, the Court has a discretion to make him a party. The transferee pedente lite can be added as a proper party, if, his interest in the subject-matter of the suit is substantial and not just peripheral. Under Order 22 Rule 10 C.P.C. an assignee pendente lite may be joined as party with the transfer of interest in the immovable property. He is a representative of the transferor from whom he has acquired that interest.

17. Even otherwise there may be a situation where the plaintiff or the defendant, as the case may be, may collude with the other parties after transfer of his interest in the property, subject-matter of the pending suit. The object of Order 22 Rule 10 C.P.C. is to curb any such situation and further to avoid multiplicity of litigation.

18. It is, however, the discretion of the Court to allow substitution of an assignee of a party during the pendency of the suit. The words ''by leave of the Court'' used in Order 22 Rule 10 C.P.C. cannot be construed to mean that any specific order is required to be passed by the Court on a separate application seeking such leave. The order allowing substitution under Order 22 Rule 10 C.P.C. would itself mean that the Court thought it fit to grant leave to the assignees to pursue the suit. The argument of learned Counsel for the petitioner in this regard are found devoid of force.

15. To the understanding of this Court, it is one thing to hold that in order to curb multiplicity of litigation or mischief by parties to a subsisting litigation through fraud or collusion between them, affecting rights of third parties, the Court may, in its discretion, grant leave to permit an assignee from one of the parties pendente lite to pursue or defend the suit, or otherwise to implead such assignee of a plaintiff to the action or may be a defendant, depending on the orientation of his rights, but quite another to say that a suit is not withdrawn by the mere making of the application under Order XIII Rule 1 of the Code, if the case be of collusion affecting rights of third parties etc., and still the Court would retain jurisdiction to substitute under Order XXII Rule 10 or implead under Order I Rule 10 of the Code an affected third party. There appears to be little quarrel about the proposition that to a pending suit, substitution in favour of an assignee pendente lite ought to be granted with leave to pursue the suit under Order XXII Rule 10 of the Code in order to substantially protect the rights of the party in favour of whom the interest from the original plaintiffs stands assigned, or may be, devolved. However, the difficulty arises when the original plaintiff has made an application, first in point of time, to withdraw the suit before the assignee comes and makes his application seeking substitution and/or impleadment under Order XXII Rule 10 or under Order I Rule 10 of the Code. The answer to the said issue rests, in turn, upon answer to the question whether the mere making of an application under Order XXIII Rule 1 of the Code results in withdrawal of the suit ipso facto or the making of an affirmative order by the Court granting that application is necessary.

16. This question has engaged the attention of Courts for a long time in this country and in the past, there has been considerable divergence of opinion amongst the High Courts. The controversy appears to have rested for a while with the decision of a Division Bench of this Court rendered in Smt. Raisa Sultana Begam and others v. Abdul Qadir and others3. In Raisa Sultana Begam (supra) Desai, C.J., speaking for their Lordships of the Division Bench, after noticing the various divergent authorities, held :

8. Since withdrawing a suit is a unilateral act to be done by the plaintiff, requires no per mission or order of the Court and is not subject to any condition, it becomes effective as soon as it is done just as a compromise does. Any information of it given to the Court is no part of it, so also any order passed by the Court on receiving the information. The act is like a point and not continuous like a line having a beginning and an end. Either it is done or not done; there is nothing like its being done incompletely or ineffectively. The consequence of an act of withdrawal is that the plaintiff ceases to be a plaintiff before the Court. If he is the only plaintiff and withdraws the whole of the suit, the suit conies to an end and nothing remains pending before the Court; if he is only one of several plaintiffs, he ceases to be a party and the suit of only the other plaintiffs continues. If he withdraws only a part of the suit that part goes out of jurisdiction of the Court and it is left with only the other part. This is the natural consequence of the act; a further consequence imposed by sub-r. (3) is that he cannot institute any fresh suit in respect of the subject-matter. He becomes subject to this bar as soon as he withdraws the suit. It follows as a corollary that he cannot revoke or withdraw the act of withdrawal, If he is absolutely barred from instituting a fresh suit, it means that he is absolutely barred from reviving his status as a plaintiff before the Court. The bar on his instituting a fresh suit would be meaningless if he were permitted to revoke the withdrawal and get himself restored to the status of a plaintiff in respect of the withdrawn suit. There is no provision allowing revocation of the withdrawal. We respectfully agree with Horwill, J. in Rajagopala Rao v. Bhanoji Rao, AIR 1940 Mad 765, where he observed at p. 766 :-

"O. 23. . . . .does not make any provision for withdrawing a withdrawal; and so it would seem that there is no provision in the Code whereby the withdrawal of a suit . . .can be cancelled. The only thing that can now be done for the plaintiff is to grant her permission ...... to file a fresh suit."

It stands to reason that when on withdrawal the plaintiff ceased to be a party and the Court ceased to have jurisdiction over his suit and thus became functus officio nothing but a fresh suit can again invest the Court with jurisdiction over it. As far as the withdrawn suit is concerned the suit is at an end and no further proceeding can be taken in it; the suit and the plaintiff do not exist and no application such as one for revoking the withdrawal can be made in the suit or by the plaintiff or entertained. So long as the suit was pending the plaintiff had a status and could exercise the right of withdrawing the suit which vests in a plaintiff; after he ceased to be the plaintiff on withdrawal he is left with no status and cannot make any application or cannot do any act as a plaintiff. We are supported in this view by the decision of Ross and Pearson, JJ., in Rajah Shamsher Bahadoor v. Mahomed Ali Beg, (1867) 2 Agra HCR 158.

9. In Ram Bharos Lall v. Gopee Beebee (1874) 6 NWP 66, it was held by another Bench of this Court, of which Pearson, it was a member, that a plaintiff who has withdrawn his suit is at liberty to rescind the act of withdrawal at any time before the final judgment because :-

"It is difficult to understand why a plaintiff should have liberty to withdraw from a suit and not have equal liberty to rescind the act of withdrawal at any time before final judgment".

We may with respect point out the reason and it is that the right of a plaintiff to withdraw his suit is not a divine right but a right expressly conferred upon him by O. 23, R. 1 and no right

All322 is similarly conferred upon him to revoke or rescind the withdrawal. So long as he remains the plaintiff he may do any act which he may do in that capacity; he cannot, after withdrawal of the suit resulting in the loss of the capacity, do an act which can be done only in that capacity. The learned Judges distinguished Rajah Shumsher Bahadoor, (1867) 2 Agra HCR 158 (supra) on the ground that in that case there was a long interval of time between the withdrawal and the revocation of withdrawal whereas in this case there was an interval of only one day. With great respect, we find it difficult to understand that whether withdrawal can be revoked or not depends upon the delay with which it is revoked. The question is of a right and not of delay with which it is sought to be exercised. In Raj Kumari Devi v. Nirtya Kali Debi, (1910) 7 Ind Cas 892 (Cal), it was held at p. 893 that

"it was competent to the plaintiff to recall her petition of withdrawal at any time before the final order had been passed."

The learned Judges relied upon the case of (1874) 6 NWP 66, and distinguished the case of Shumsher Bahadoor (1867) 2 Agra HCR 158. It has not been pointed out by them why an order of the Court is required in order to complete or effectuate the withdrawal and have not dated any authority for imposing this condition. We have pointed out that on withdrawal certain orders may be passed by the Court but they are not for giving effect to the withdrawal, but to give effect to consequences arising out of the withdrawal. O. 23, R. 1 does not require any order; there can be no question of an order if no application is to be made by the plaintiff. We, therefore, respectfully disagree with the view of the Calcutta High Court. In Mukkammal v. Kalimuthu Pillay, 15 Ind Cas 852 (Mad), Sundara Aiyar, J. was of the view that the plaintiff has a right to revoke the act of withdrawal, while Sadasiva Aiyar, J. was inclined to the view that neither can he revoke his withdrawal application except on good grounds nor can he be allowed to play fast and loose with the litigation launched by him at his sweet will and pleasure. Sundara Aiyar, J. referred to the absence of any provision in the Code giving a light to a defendant to insist that a petition of withdrawal not acted upon by the Court must be enforced as against the plaintiff and thought that a mere petition of withdrawal does not debar the plaintiff from proceeding with the suit unless, in the meanwhile, the suit has been dismissed by the Court. We respectfully disagree as no order of the Court is required when a plaintiff withdraws a suit and there is no justification for saying that the act of withdrawal is not complete so long as the Court does not dismiss the suit. The bar imposed by sub-r. (3) operates on withdrawal and not on any order by the Court dismissing the suit and must be deemed to include the prevention of revival of the suit.

In Lakshmana Pillai v. Appalwar Alwar Ayyangar, AIR 1923 Mad 246, it was assumed by Oldfield, J. that an application for withdrawing a suit is conditional on the passing of an order regarding costs. But it seems to us, with respect to the learned Judge, that there is a distinction between withdrawal by a plaintiff of the suit and his liability to be awarded the costs of the suit. The liability arises out of the withdrawal but it would be wrong to argue that so long as the liability is not imposed the withdrawal is not complete. There may be an interval of time between the withdrawal and imposition of the liability through an order without its in any way derogating from the effect of the withdrawal. The facts in Midnapur Zamindari Co. Ltd. v. Raja Bijoy Singh Dudhuria, AIR 1941 Cal 1, were distinguishable because the plaintiff sought to withdraw from the suit with permission to file a fresh one and that required an order from the Court granting permission. There is a distinction between withdrawal without liberty to file a fresh suit which is at the absolute discretion of the plaintiff and withdrawal with liberty which can be done only when the Court grants permission. In this case the Court postponed passing orders on the application for permission to withdraw with liberty and before the orders were passed the plaintiff withdrew the application. A plaintiff may have a right to withdraw an application for withdrawal with liberty but it does not follow that a plaintiff who withdraws the suit under sub-r. (1) has a right to revoke the withdrawal before the Court passes some order. Then we come to Yeshwant Govardhan v. Totaram Avasu, AIR 1958 Bom 28, in which Dixit and Vyas, JJ. held that an application by a plaintiff withdrawing the suit requires an order, that so long as no order is passed it can be withdrawn and that no reasons are required for his withdrawing the application. With great respect we find it difficult to agree. It is true that a Court has control over the proceedings initiated by a plaintiff through a suit but the plaintiff has been given an absolute right to withdraw from it at any stage and the Court has no control over this act of withdrawal. The learned judges said at p. 29

"If. . . . .the plaintiff has a right to withdraw his suit, he has, equally, a right to withdraw his withdrawal, and so long as the Court has not made an order showing that the withdrawal has become complete or effective there is always a locus paenitentiae for the plaintiff to withdraw his withdrawal."

The right to withdraw has been expressly conferred by rule 1(1); there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that the right to withdraw includes in itself a right to revoke' the withdrawal. As we said earlier, certain consequences arise from the withdrawal which prevent his revoking the withdrawal, the withdrawal is complete or effective as soon as it takes place, and, in any case, as soon as information of it is conveyed to the Court, and no order of the Court is required to effectuate it or even to recognise it. Then the learned Judges referred to the order regarding costs and inferred that the Court has to make an order after the withdrawal. Whatever order the Court may, or may have to make is not regarding the withdrawal but regarding the effect or consequences of the withdrawal, which is quite a different All323 matter. The proposition that a plaintiff has an absolute right to withdraw his application for withdrawal is not accepted universally and we have already referred to the observations to the contrary. Lastly, we come to Masulipatam Municipality v. Venkatappayya, AIR 1960 Andh Pra 572. Umamaheshwaram and S. Oamar Hassan, JJ. observed at p. 575 :-

"Without the stroke of the judicial pen under O. 23, R. 1, sub-r. (3), C.P.C. the suit is not terminated and that in appropriate cases the provisions of O. 1, R. 10 or O. 22, R. 10 C.P.C. may be applied."

The order referred to in R. 1, sub-r. (3) is only one imposing costs upon the plaintiff on account of his withdrawal from the suit; this provision does not contemplate any order.

10. In AIR 1958 Bom 28 (supra) and AIR 1923 Mad 246, the doctrine of locus paenitentiae was advanced and it was held that a plaintiff can revoke his withdrawal of a suit at any time before an order is made by the Court regarding withdrawal. With great respect, we may point out that if locus paenitentiae has to be allowed it must be allowed by the legislature and not by the Courts. We see no reason why we should be so solicitous about a plaintiff on the threshold of withdrawal of his suit that we should allow him locus paenitentiae. There is no reason why a plaintiff should claim to have locus paenitentiae and in any case whatever locus paenitentiae he needs is already there between his mental decision to withdraw and his informing the Court of the withdrawal. He has no locus paenitentiae in the matter of institution or of compromise of a suit and there is no justification for saying that he has locus paenitentiae after withdrawal of the suit. The doctrine of locus paenitentiae falls to the ground when it is realised that he has not to apply for withdrawing and that he needs neither the permission of the Court for withdrawing nor its order allowing, recognizing or confirming the withdrawal.

11. Our answer, therefore, to the question referred to us is in the negative.

17. The decision of the Division Bench in Raisa Sultana Begam making unconditional withdrawal under Order XXIII Rule 1 of the Code effective on the mere making of the application by the plaintiff was overruled by the Full Bench of this Court in The Sunni Central Board v. Sri Gopal Singh Visharad4, where it was held :

1035. Once a suit is duly instituted, the Court would pass

order issuing summons to the defendants to appear and answer the plaint. Such summons, vide Order V Rule 3, are required to be signed by the Judge or such officer as he appointed, and also the seal of the Court. A suit once duly instituted and registered in the Court would not struck off from the record of the Court on the mere communication by the plaintiff orally or in writing

that he intends to withdraw unless an order is passed by the Court to the said effect, which would have the legal

consequence of bringing the proceedings set in motion by

instituting the suit, to a halt. Mere absence of any provision permitting withdrawal of the application filed by a plaintiff for withdrawing the suit does not mean that no such power is vested in the plaintiff. So long as an order is not passed by the Court, if the plaintiff informs the Court by moving an application that he intends to withdraw the application for withdrawal of suit, he

can always request or inform the Court that he does not want to press the application and the same may be dismissed as not pressed or withdrawn. It is only where the plaintiff press his application before the Court requiring it to pass the order for withdrawal of the Suit, the Court would pass the said order in accordance with law since it cannot compel a plaintiff to pursue a suit though he want to withdraw the same. It would thus be wholly unjust to hold that once an application to withdraw the

suit is filed by a plaintiff, he cannot withdraw the same and the suit would stand dismissed as withdrawn. This would have serious and drastic consequences in as much as he cannot file a fresh suit on the same cause of action.

1036. Moreover, the existence of a provision i.e. Rule 1(3), empowering the Court to consider as to whether the plaintiff should be saddled with the liability of payment of cost or not also contemplates that an application for withdrawal of suit by itself would not result in any consequences whatsoever unless the Court has applied its mind regarding the cost. If what has been held in Smt. Raisa Sultana Begam (supra) is taken to be correct, it would mean that there would be no occasion for the

Court to apply its mind on the question of cost under Rule 1(3) since the suit would stand dismissed as withdrawn as soon as the plaintiff informs the Court about his decision for withdrawal of the suit either orally or in writing. This is nothing but making Rule 3 (1) redundant. The earlier judgement of this Court in Raja Shumsher Bahadoor Vs. Mirja Mahomed Ali (1867) Agra H.C.R. 158 wherein this view was taken that the withdrawal must be regarded as terminating automatically the proceedings in the suit involving the suit's immediate dismissal was not found to be correct subsequently by the Division Bench in Ram Bharos Lall. We, therefore, find it appropriate in the

entire facts and circumstances to take a different view and have no hesitation in holding though with great respect to the Bench, that the law laid down in Smt. Raisa Sultana Begam (supra) is not correct. In our view, the law laid down in Ram Bharos Lall (supra), Mukkammal Vs. Kalimuthu Pillay (supra), Raj Kumari Devi Vs. Nirtya Kali Debi (supra) and Yeshwant Govardhan Vs. Totaram (supra) lay down the correct law. We also find that a Division Bench of Orissa High Court in Prema Chanda Barik Vs. Prafulla Kumar Mohanty AIR 1988 Orissa 33 has also taken the same view and did not find itself agreeable with the Division Bench decision in Smt. Raisa Sultana Begam (supra). In fact, a Division Bench of Calcutta High Court in Rameswar Sarkar Vs. State of West Bengal and others AIR 1986 Cal. 19 has gone slightly further by observing that where there is no provision under the Code providing for withdrawal of application for withdrawal of suit, Section 151 C.P.C. would apply.

18. Raisa Sultana Begam was, therefore, held no longer good law by a learned Single Judge of this Court in M/s. Auto Oil Company and another v. Indian Oil Corporation Ltd. and others5 and by another learned Judge in Bhajan Lal and others v. Smt. Rajmala Daughter of Kamta Prasad6, who also took note of the decision in M/s. Auto Oil Company (supra). It is worthy of notice that in both the decisions of this Court, to wit, Bhajan Lal (supra) and M/s. Auto Oil Company, the decision of the Supreme Court in Rajendra Prasad Gupta v. Prakash Chandra Mishra and others7 was referred to, where it has been held :

1. Heard the learned counsel for the appellant and Respondents 1 to 3. No one appeared for Respondent 4.

2. This appeal, by special leave, has been filed against the impugned judgment of the High Court of Allahabad dated 6-2-2004 passed in FAFO No. 2103 of 2003. It appears that the appellant was the plaintiff in Suit No. 1301 of 1997 before the Court of the 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.

3. 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.

4. We do not agree. 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.

5. In Narsingh Das v. Mangal Dubey [ILR (1883) 5 All 163] , Mahmood, J. the celebrated Judge of the Allahabad High Court, observed:

"Courts are not to act upon the principle that every 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."

6. The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena v. Bhim Sen [AIR 1966 All 84] and we agree with this view. Accordingly, we are of the opinion that the application praying for withdrawal of the withdrawal application was maintainable. We order accordingly.

7. In the result, the impugned judgment of the High Court is set aside and the appeal is allowed. No costs. The suit shall proceed and to be decided on merits, expeditiously.

19. The learned Judge deciding Bhajan Lal noticed some difference of opinion in the decisions of the Supreme Court and held in favour of the view relying on the Full Bench in The Sunni Central Board (supra) and the authority of the Supreme Court in Rajendra Prasad Gupta that withdrawal does not come about until an order is passed by the Court permitting it. In Bhajan Lal, after considering the difficulties posed by conflict of judicial opinion and considering it in the backdrop of rights of parties that may arise in varying circumstances, it was held :

31. The contention raised that Order 21 Rule 89 (II) has similar wordings and the order of the Court is not necessary, is not attracted, as the ingredients of Order XXIII are entirely different as discussed herein above. A litigant can surrender his right to contest a matter which is the essence of Order XXIII. The right to withdraw such an intention of surrender or revoke the same which can arise in the circumstances as discussed herein above is a different issue. These ingredients, therefore, in relation to the entire disclaimer of the claim is not comparable with the provisions of Order 21 Rule 89 (2) in a matter arising out of execution.

20. In Smt. Kanteshwari Tiwari (Dead) through L.Rs. v. Badri Prasad and others8 a learned Single Judge of this Court followed the Full Bench in The Sunni Central Board and endorsed the view of the learned Single Judge in M/s. Auto Oil Company. In Kanteshwari Tiwari (supra), it was observed :

26. I find that this part of judgment is no longer a good law inasmuch as the Division Bench judgment in Raisa Sultan Begam (supra) has already been over-ruled by this Court in the majority decision in Sunni Central Board of Waqf v. Sri Gopal Singh Visharad [2010 ADJ Page 1 (SFB) (LB) : 2010 (83) ALR 26 (Sum.).] and this has been referred to and fol-lowed by another Single Judge of this Court in Auto Oil Company Majhola Devi v. Indian Oil Corporation Ltd. [2011 (5) ADJ 800.] . The Hon'ble Single Judge has found that recently even the Apex Court has taken a similar view in Rajendra Prasad Gupta v. Prakash Chandra Mishra [2011 (85) ALR 715 (SC).] , reversing a decision of this Court. The view taken by this Court that once an application to withdraw the suit is filed there is no occasion to file a further withdrawal application to withdraw the earlier application, has been negatived by Apex Court observing that an application praying for withdrawal of withdrawal application was maintainable.

21. So far as the proposition that the Bench decision in Raisa Sultana Begam is no longer good law, as it stands overruled about the effect of making of an application under Order XXIII Rule 1 of the Code by the plaintiff, in view of the holding of the Full Bench in The Sunni Central Board is not tenable, as the Full Bench decision of this Court in The Sunni Central Board stands set aside by the Supreme Court in M. Siddiq (dead) through legal representatives (Ram Janmabhumi Temple case) v. Mahant Suresh Das and others9. Nothing has been brought to the notice of this Court that the principle of law in the Full Bench regarding the effect of the making of an application under Order XXIII Rule 1 of the Code, where no orders are passed by the Court, has been approved by their Lordships of the Supreme Court. The effect of setting aside of the judgment of this Court by the Supreme Court in M. Siddiq (supra), in the opinion of this Court, would lead to effacement of the principle on the point that was laid down by the Full Bench in The Sunni Central Board and followed by the learned Judges in M/s. Auto Oil Company and Bhajan Lal.

22. To the contrary, there is a later decision of the Supreme Court in Anurag Mittal v. Shaily Mishra Mittal10 where, on the issue that falls for consideration here, it has been held :

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.

23. To the understanding of this Court, the holding of the Supreme Court in Anurag Mittal (supra) , which is a much later decision than Rajendra Prasad Gupta would bind this Court. In the event of conflict between two decisions of the Supreme Court, a question may arise before the High Court, in the context of a conflict between a larger Bench of the Supreme Court and a Bench of lesser strength, or it may arise in the context of two conflicting decisions rendered by Benches of the same strength. The principle to be followed by the High Court, about which precedent of the Supreme Court will bind, fell for consideration of a Full Bench of this Court in Gopal Krishna Indley v. 5th Additional District Judge, Kanpur and others11. In Gopal Krishna Indley (supra), K.C. Agrawal, J., speaking for the Bench, held :

19. The Supreme Court has dealt with the binding nature of its pronouncements in a number of decisions. It is, not necessary to refer to those cases. In a case where a High Court finds any conflict between views expressed by larger and smaller Benches of the Supreme Court the Supreme Court said that proper course for such a High Court is to follow the opinion expressed by larger Benches of the Supreme Court in preference to those expressed by smaller Benches of the Court (See State of U.P. v. Ram Chandra, (1976) 4 SCC 52 : AIR 1976 SC 2547).

20. The difficulty, however, before us is slightly different, and is not covered by the authority cited above. We are faced with a situation where there are conflicts between the two decisions of the Supreme Court given by Judges of equal strength. We are not concerned here with reasons which led to these conflicts.

21. Rupert Cross in his book on "Precedent in English Law" third edition page 133, has dealt with this matter in the following words:--

"If there is, an increasing tendency to recognise the possibility that previous decisions of the same Court may conflict, it is a tendency which is to be applauded. The Court's attention is frequently not drawn to all the relevant authorities, some cases are not particularly well argued and unreserved judgments are often delivered. It is useless to deplore these occurrences because they will continue as long as barristers, Judges, and litigants, remain human......".

22. To meet a situation like the present reference may be made to a Full Bench decision of our Court in U.P.S.R.T.C. v. State Road Transport Tribunal, U.P. Lucknow (AIR 1977 All 1) : (1976 All LJ 683) where the Full Bench held:--

"Even if there is some conflict in the two Supreme Court's decisions, we have to follow the law as declared in the latter case of Mysore State Transport Corporation".

23. To the same effect is the view taken by a Full Bench of Karnataka High Court in Govindanaik G. Kalghatagi v. West Patent Press Co. Ltd. (AIR 1980 Kant 92) and by Calcutta High Court in Sovachand Mulchand v. Collector of Central Excise and Land Customs (AIR 1968 Cal 174). Thus, what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us.

24. xxxxx

25. We, therefore, cannot ignore the subsequent decision of the Supreme Court on the basis of the same being per incuriam.

(emphasis by Court)

24. In a later Full Bench decision of this Court in Ganga Saran v. Civil Judge, Hapur, Ghaziabad and others12, it was observed by their Lordships :

6. With respect to the first question the decision of Supreme Court in the case of Qamaruddin which is later decision on one hand and decisions in Vishesh Kumar v. Shanti Prasad (Supra) and Vishnu Awatar v. Shiv Awatar (Supra) which affirm the decision of this Court in Jupiter Chit Fund (Pvt) Limited v. Dwarka Diesh (Supra) would show that there is a direct conflict on the question of maintainability of revision in High Court u/S. 115, C.P.C. Both the judgments of the Supreme Court are by a bench consisting of two Hon'ble Judges. In such a situation the questions which arise for consideration are namely: When there is a direct conflict between the two decisions of Supreme Court rendered by Judges of equal strength, which of them should be followed by the High Court and whether later decision of the Supreme Court has effect of overruling the earlier decision of the Supreme Court?

7. One line of decision is that if there is a conflict in two Supreme Court decisions, the decision which is later in point of time would be binding on the High Courts. The second line of decisions is that in case there is a conflict between the judgments of Supreme Court consisting of equal authorities, incidence of time is not a relevant factor and the High Court must follow the judgment which appears it to lay down law elaborately and accurately.

8. Similar situation arose before a Full Bench of Punjab and Haryana High Court in the case of Indo Swiss Time Limited, Dundahera v. Umrao, AIR 1981 Punj & Har 213. What the Full Bench in the said case held is extracted below (at pp. 219-220 of AIR):

"Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and therefore, of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot be binding on the courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of coequal Benches of the Superior Court are earlier later is a consideration which appears to me as hardly relevant."

9. xxx

10. For the above reasons it must be held that the decision of Supreme Court in Qamaruddin's case (1990 All WC 308) (Supra) to the extent it holds that revision against an appellate or revisional order passed by the district court is maintainable u/S. 115, C.P.C. (as amended by U.P. Act 31/78) to the High Court does not state the law accurately or overrule the decision of the Full Bench of this Court in Jupiter Chit Fund (Pvt) Ltd. v. Dwarka Diesh (AIR 1979 All 218) (Supra) particularly when it has specifically been approved by the two earlier decisions of the Supreme Court.

25. The question also came up before a Full Bench of the Kerala High Court in more recent time in Raman Gopi and another v. Kunju Ram Uthaman13. In Raman Gopi (supra) on the issue, it is opined :

77. The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarised below:--

(i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;

(ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides.

(iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art. 141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent;

(iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it.

(v) The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution.

(vi) A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. (Salmond on Jurisprudence 12th Edn. p. 153).

(vii) A Division Bench, in case of conflict between the decision of a Division Bench of two Judges and the decision of a larger Bench and in particular, a Constitution Bench, would be bound by the latter decision.

(viii) Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct, but cannotbe said to be per incuriam.

(emphasis by Court)

26. The same issue was echoed in a Karnataka High Court decision in D.V. Lakshmana Rao v. State of Karnataka and others14, where it was observed :

14. It is now well settled that if there are two conflicting judgments of the Supreme Court, of benches with equal number of Judges, then the latter will prevail over the earlier. But where the earlier judgment is of a larger bench and the latter judgment is of a smaller bench, then the decision of the larger bench will be binding. In State of U.P. v. Ramchandra [AIR 1976 SC 2574.] the Supreme Court held that where the High Court finds a conflict between the views expressed by a larger bench and a smaller bench, the proper course for the High Court is to find out the ratio decidendi of the decision of the Larger Bench and follow the same in preference to the opinion expressed by the Smaller Bench. Hence I am bound to follow the decisions in Satendra Prasad Jain and Pratap which are of Larger Benches, instead of following the decision in Mariyappa which is of a smaller Bench.

(emphasis by Court)

27. Here, what the Court finds is that the decision of the Supreme Court in Rajendra Prasad Gupta is earlier in point than Anurag Mittal. Both the decisions are by a Bench of two Judges. Going by the thumb rule, about which, there is consensus, the later decision would bind this Court. Therefore, this Court would be bound by the principle in Anurag Mittal. Even if the other principle that the later Full Bench of our Court has propounded as a alternate to the later decision rule, that is to say, the Full Bench in Ganga Saran were followed, this Court would have to see which decision appears to have laid down the law elaborately and accurately. Judged from that point of view also, the decision in Anurag Mittal appears to be more elaborate, where the issue has received a fuller consideration. On either premise, though this Court goes by the thumb rule about the later decision, the principle in Anurag Mittal seems to bind this Court.

28. The principles laid down by this Court in Raisa Sultana Begam, therefore, appear to be good law, in view of the subsequent decision of the Supreme Court in M. Siddiq, and, in particular, the decision in Anurag Mitthal. So far as the decision of this Court in Meera Rai is concerned, certainly, that is a different view of the matter. Paragraph No. 15 of the report holds an affirmative order on an application by the plaintiff under Order XIII Rule 1 of the Code, imperative. Therefore, the withdrawal of the suit can become effective after the Court has passed an affirmative order, allowing the application and granting a withdrawal of the suit. This does not seem to be in accord with the law laid down by the Supreme Court in Anurag Mittal.

29. In view of what this Court has said above, we are in respectful disagreement with the view expressed as aforesaid in Meera Rai. However, sitting singly, it would not be appropriate for this Court to proceed to judgment.

30. Therefore the following questions of law are referred for consideration by a larger Bench :

(i) Whether the decision of this Court in Raisa Sultana Begam, AIR 1996 Allahabad 318 holding that an application under Order XXIII Rule 1 of the Code of Civil Procedure, 1908 once moved, leads to a withdrawal of the suit ipso facto without the Court passing an affirmative order, is still good law, in view of the subsequent decision of the Full Bench in The Sunni Central Board v. Sri Gopal Singh Visharad, 2010 ADJ 1 (SFB)(LB) and the Supreme Court in M. Siddiq (dead) through legal representatives (Ram Janmabhoomi Temple case) v. Mahant Suresh Das and others, (2020) 1 SCC 1 and Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691 ?

(ii) Whether the decision in Meera Rai v. Additional Sessions Judge and others, 2017 (12) ADJ 817 does not lay down the law correctly, in view of the law laid down by the Supreme Court in Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691 on the issue if the mere lodging of an application to unconditionally withdraw a suit under Order XXII Rule 1 of the Code of Civil Procedure, 1908 operates as a withdrawal of the suit ipso facto and without an affirmative order ?

31. In view of the orders of the Supreme Court in Misc. Application No. 315 of 2022 in Special Leave Petition (C) No. 6526 of 2020 dated 28.02.2022, the Registry is directed to place the matter urgently before His Lordship the Hon'ble The Chief Justice for constitution of a larger Bench.

Order Date :- May 09, 2023

I. Batabyal

(J.J. Munir, J.)