[Cites 15, Cited by 0]
Allahabad High Court
Jeera Devi And Another vs Additional District Judge Court No.12, ... on 16 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:86164
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 4747 of 2019
Jeera Devi And Another
.....Petitioner(s)
Versus
Additional District Judge Court No.12, Varanasi And 2 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Brij Raj
Counsel for Respondent(s)
:
Pratik J. Nagar, Shambhu Nath, Triveni Shanker
Along with :
1.
Matters Under Article 227 No. 5892 of 2021:
Phulpatti Devi
Versus
Smt.Amrawati Devi and 2 others
Court No. - 5
HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri Atul Dayal, learned Senior Counsel assisted by Sri Brij Raj Singh, learned counsel for the petitioner-plaintiff in the leading writ petition and the respondent nos. 2 and 3 in the connected petition; Sri Pratik J. Nagar, learned Senior Counsel assisted by Sri Shambhu Nath, learned counsel appearing for respondent no. 3 in the leading petition and for the petitioner in the connected petition; and Sri Triveni Shankar along with Ms. Garima Jaiswal, learned counsel for respondent no. 4 in the leading petition and respondent no. 1 in the connected petition.
2. Since affidavits have been exchanged between the parties and the matter is ripe for final hearing, and as learned counsel for the parties do not propose to file any further affidavits, the petitions, with the consent of the parties, are being finally decided by a common order at the admission stage.
3. The case, as set out in the petitions, is that the original plaintiffs, namely Smt. Munnan Devi wife of Ram Avatar, residents of Basani, Pargana Kolusla, District Varanasi and Smt. Ramdei wife of Ram Das, resident of Ramaipatt, were transferable land lord of Aaraji No. 156 area 0.72 decimal and Aaraji No.- 40 area 0.243 H share situated at Mauja-Saraimugal, Pargana Athagaon, District Varanasi. As per the record, on 09.10.1998, a sale deed is stated to have been executed by the original plaintiffs in favour of Smt. Amrawati Devi, wife of late Panna Lal, in respect of 1/2 share of an area measuring 0.72 decimal from Aaraji No. 156 and an area measuring 0.30 decimal from Aaraji No. 40, situated at Mauja Saraimugal, Pargana Athagaon, District Varanasi, by an impostor.
4. Upon coming to know about the execution of the sale deed dated 09.10.1998, the original plaintiff Smt. Munnan Devi instituted Original Suit No. 154 of 1999 (Munnan Devi vs. Smt. Amrawati Devi) seeking declaration that the sale deed dated 09.10.1998 is null and void on the ground of fraud, along with a relief of permanent injunction.
5. Upon notice, the defendant in the said suit, Smt. Amrawati Devi, filed her written statement on 03.07.2000. The plaintiff Smt Munnan Devi also filed replication in support of her case on 29.8.2000. The trial court framed issues on 30.08.2000. Issue nos. 4 and 5 were decided on 06.09.2000, and 05.10.2000 was fixed for evidence.
6. It is further the case of the petitioners that during the pendency of the suit, the original plaintiff, Smt. Munnan Devi, filed an application (Paper No. 19-C) seeking summoning of the original sale deed from the office of the Registrar. Subsequently, the said original plaintiff, Smt. Munnan Devi, executed a sale deed dated 23.05.2011 in favour of petitioner no. 2 in the leading petition, namely Ghanshyam Patel. Another sale deed was also executed on the same date by Smt. Jeera Devi in favour of the petitioner no. 1 in the leading petition.
7. However, on 09.02.2013, the original plaintiff, Smt. Munnan Devi, expired. Thereafter, Smt. Phulpatti Devi, who is the daughter of the original plaintiff, moved a substitution/amendment application dated 15.04.2013 in Original Suit No. 154 of 1999 seeking substitution of her name in place of the deceased original plaintiff. The said substitution application was subsequently allowed, and Smt. Phulpatti Devi was brought on record as the plaintiff.
8. After her substitution, Smt. Phulpatti Devi moved an application dated 05.04.2018 (Paper No. 45-C) under Order XXIII Rule 1 read with Section 151 CPC seeking permission to withdraw the original suit on the ground that a compromise had been entered into between her and the defendant, Smt. Amrawati Devi.
9. In the meantime, the present petitioners in the leading writ petition, claiming themselves to be subsequent purchasers by virtue of a registered sale deed dated 23.05.2011, moved an application dated 19.04.2018 (Paper No. 48-K/1) under Order XXII Rule 10A CPC seeking their impleadment as parties in the said suit. The present petitioners also filed objections to the application moved by Smt. Phullpatti Devi under Order XXIII Rule 1 CPC seeking withdrawal of the suit.
10. Thereafter, by order dated 04.09.2018, the Court of Additional Civil Judge (Junior Division), Court No. 7, Varanasi allowed Application Nos. 48-C and 54-C filed by the present petitioners for their impleadment as parties in the suit and rejected Application No. 45-K filed by Smt. Phullpatti Devi for withdrawal of the suit under Order XXIII Rule 1 CPC.
11. Aggrieved by the said order, Smt. Phullpatit Devi preferred a Civil Appeal No. 143 of 2018 (Phullpatti Devi vs. Amrawati Devi and 2 others). The Appellate Court, i.e., the Court of Additional District Judge, Court No. 12, Varanasi, by order dated 04.05.2019, allowed the appeal, set aside the order dated 04.09.2018 passed by the trial court, permitted withdrawal of the suit, and rejected the impleadment application filed by the present petitioners in the leading petition. This led to the filing of the leading writ petition before this Court. This Court entertained the leading writ petition on 26.08.2019 and passed the following order:-
"The petitioners being assignee of the interest of original plaintiff during pendency of the suit, after death of the original plaintiff applied for their impleadment/substitution as plaintiffs in the suit. Initially after death of the original plaintiff, his daughter was substituted. The daughter filed an application for withdrawal of the suit. As soon as the petitioners came to know of the said fact, they filed the application referred to above. The trial court allowed the said application by order dated 4.9.2018 and rejected the application filed by the daughter of the original plaintiff praying for withdrawal of the suit. Aggrieved thereby, the daughter of the original plaintiff filed appeal which has been allowed by the impugned order.
Learned counsel for the petitioners submitted that as soon as the petitioners came to know that the legal representative of the original plaintiff is not taking proper steps to protect the interest of the assignee, they filed application for their impleadment/ substitution as plaintiff. The trial court rightly allowed the said application but the appellate court on wholly irrelevant consideration has interfered with the said order.
On the other hand, Sri Triveni Shankar, learned counsel appearing on behalf of respondent No.4 submitted that the daughter of the original plaintiff had full right to seek withdrawal of the suit and the petitioners are not entitled to be impleaded.
The matter requires consideration.
Sri Shambhu Nath has accepted notice on behalf of respondent No.3 and Sri Triveni Shankar on behalf of respondent No.4. They are granted three weeks time to file counter affidavit.
List in the last week of September, 2019.
Having regard to the facts of the case and the submissions made, the effect and operation of the order of the appellate court dated 4.5.2019 shall remain stayed till the next date of listing. "
12. Counter affidavits as well as rejoinder affidavits have since been exchanged between the parties.
13. Since the order passed by the appellate court dated 04.05.2019 was stayed by this Court by virtue of the order dated 26.08.2019, the interim order was not extended by the trial court, and consequently, an order came to be passed by the Court of Additional Civil Judge (Junior Division), Court No. 5 Varanasi in O.S. No. 154 of 1999 on 12.10.2021. The said order is the subject matter of challenge in the connected writ petition. The connected writ petition was tagged with the leading writ petition by order dated 11.11.2021, and accordingly, both petitions are being heard together.
14. It further transpires that a petition under Article 227 of the Constitution of India, being Petition No. 9978 of 2019, was filed seeking expeditious disposal of the suit. Against an order dated 18.01.2020 for expeditious disposal of the suit proceedings, a Special Leave to Appeal (C) Nos. 6526 of 2020 (Amarawati and another vs. Ghanshyam Patel and another), was preferred before the Hon'ble Supreme Court, wherein on 06.08.2021, the following order was passed:-
"We decline to interfere in this Special Leave Petition.
The High Court has already directed the Trial Court in terms of impugned judgment to decide the pending suit within six months, which has still not happened.
Accordingly, we direct the Trial Court to ensure that the trial is concluded not later than end of January, 2022 and report compliance in that behalf.
Copy of this order be forwarded forthwith to the concerned Court where the suit is pending; as well as to the Registrar (Judicial), High Court of Judicature at Allahabad, through email for information and necessary action.
The Special Leave Petition is dismissed accordingly.
Pending applications, if any, stand disposed of. "
15. Subsequently, the leading writ petition came up for reconsideration before the co-ordinate Bench, wherein on 09.05.2023, the following questions were referred for consideration by a larger Bench, which are as under:-
"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."
16. The Larger Bench answered the reference vide judgment dated 19.01.2026, relevant extracts of which are being reproduced as under:-
"40. In Thomas George Vs. Skariah Joseph & Anr.; AIR 1973 Kerala 140, the Kerala High Court disagreed with the view taken by the division bench of this Court in Raisa Sultan Begum (supra); and Amalgamated Electricity Co. Ltd. Vs. Kutubuddin; AIR 1970 Mys 155. In that, learned single judge of the Kerala High Court observed as below:
"4. ... It appears to me that though no order on an application for withdrawal under Order 23. Rule 1(1) is called for nevertheless withdrawal be comes irrevocable only when the Court has occasion to exercise its mind on the factum of withdrawal brought to its notice. After that moment, it is not open to the party to back out of it. Until that is brought to its notice, the withdrawal has not been acted upon. .."
41. Then, a division bench of the Calcutta High Court in Rameswar Sarkar Vs. State of West Bengal; AIR 1986 Calcutta 19 also had the occasion to consider the aforesaid issue. It disagreed with the division bench decision of this Court in Raisa Sultan Begum (supra). Referring to Section 151 of the Code, the Calcutta High Court found that the said provision would allow for withdrawal of an application seeking to withdraw a suit. It thus observed:
"14. The scope of S. 151 is very wide. Where there is no provision under the Code of Civil Procedure prescribing any remedy, S. 151 will apply. O. 23, R. 1 provides withdrawal of a suit with or without liberty to file a fresh suit. There is no provision for getting an order passed on withdrawal application set aside or praying for withdrawal of an application for withdrawal of the suit. In such circumstances, in our opinion, the Court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power in a proper and suitable case. ..."
42. Last, the Rajasthan High Court in Thakur Pehp Singh Vs. Thakur Prathvi Singh & Ors.; AIR 2011 Rajasthan 22 also opined that the plaintiff would have right to withdraw his withdrawal application so long as the Court may not have made any order thereon.
43. Interestingly, it is the view taken by the Calcutta High Court that resonates in the decision of the Supreme Court in Rajendra Prasad Gupta (supra), to the extent the Supreme Court has reasoned that the plaintiff would remain empowered to withdraw his application filed to withdraw a suit, till any order is passed on such withdrawal application. By virtue of section 151 of the Code, any plaintiff who may have filed an application to withdraw a suit proceeding may remain empowered to withdraw that application itself, before any order is passed on the application to withdraw the suit.
44. Thus, to the doubt expressed by the learned single judge, we respond: The decision in Meera Rai (supra) is good law as its reasoning is protected and preserved under the ratio of the decision of the Supreme Court in Rajendra Prasad Gupta (supra). The decision of the Supreme Court in Anurag Mittal (supra) is wholly distinguishable, being applicable to the interpretation and determination of the scope of section 15 HMA.
45. Thus, the two decisions of the Supreme Court in Rajendra Prasad Gupta (supra) and Anurag Mittal (supra) operate in different fields. In so far as the division bench decision in Smt. Raisa Sultana Begam (supra) is concerned, it is no longer a good law in view of the law pronounced by the Supreme Court in Rajendra Prasad Gupta (supra).
46. We also observe that the view taken in Meera Rai (supra) is consistent to the view taken by the Bombay, Kerala, Calcutta and Rajasthan High Courts in - Yeshwant Govardhan (supra), Thomas George (supra), Rameswar Sarkar (supra) and Thakur Pehp Singh (supra), respectively.
47. Before we part, first, we may observe in brief - Order XXIII Rule 1 creates a 'right', sometimes described as 'power' on the plaintiff to withdraw from a suit proceeding, instituted by them. That right is absolute and one that may not require any further action on part of the Court, to fructify. Yet, that 'right' or 'power' is not in derogation, either to Section 151 of the Code which vests on the same plaintiff a right to seek withdrawal of his application to withdraw from a suit - before the Court grants its imprimatur and thus renders itself functus officio. That little window of time exists.
48. In that, to read the withdrawal of a suit proceedings as complete immediately or forthwith - upon communication of the intent (by the plaintiff), to withdraw from a suit proceeding, besides needlessly defeating Section 151 of the Code, would also militate against the other discretionary powers of the trial court - whether with respect to award of cost or to allow a party to be transposed as a plaintiff or to allow an assignee to continue the suit.
49. If allowed 'automatically', besides leading to multiplicity of proceedings, it would result in obstructing the fair path of justice itself. The court would become a mere postman or spectator, entirely dependent on the conduct of a plaintiff (except in cases of fraud), with no eye on or intent to address the needs of justice. That dictation of the procedural law to override the substantive law may never be consistent to the ends of justice. Therefore, it may never be desirable.
50. Accordingly:
Question number (i) is answered in the negative. We hold that the ratio laid down in Smt. Raisa Sultana Begam (supra) is no longer a good law in view of the later pronouncement of the Supreme Court in Rajendra Prasad Gupta (supra).
Question number (ii) framed in the negative, is answered in the negative. We opine that Meera Rai (supra) is a good law being consistent to the ratio of the Supreme Court in Rajendra Prasad Gupta (supra).
51. By way of clarification, we reiterate that Anurag Mittal (supra), though a decision of the Supreme Court has no applicability while interpreting Order XXIII Rule 1 of the Code. That decision is relevant for an interpretation of Section 15 HMA.
52. The reference is answered accordingly. Let the record be placed before regular bench. "
17. Thereafter, the matter was heard on 01.04.2026, and the following orders was passed:-
"1. Heard Sri Atul Dayal, learned Senior Counsel assisted by Sri Brijraj Singh, learned counsel for the plaintiff-petitioners in the leading petition and defendant-respondent nos. 2 and 3 in the connected petition as well as Sri J. Nagar, learned Senior Counsel assisted by Sri Shambhu Nath on behalf of Phulpatti Devi and Sri Triveni Shankar along with Ms. Garima Jaiswal for Amrawati, defendant-respondent no.4 in the leading petition and defendant-respondent no.1 in the connected petition.
2. The plaintiff-petitioner in the leading petition claims to be the subsequent purchasers, who by virtue of a registered sale-deed purchased the demised property and post-demise of the original-plaintiff, an application came to be preferred under Order 21 Rule 10 of CPC. However, an application came to be preferred by Phulpatti Devi claiming herself to be the daughter of the original plaintiff for withdrawal of the suit under Order 21 Rule 10 CPC. The application so preferred by Phulpatti Devi came to be rejected and the application so preferred by the plaintiff-petitioner was allowed, however, the appellate reversed the said orders of the trial court, which led to filing of the present leading petition, in which on 26.08.2019, the following orders were passed: "The petitioners being assignee of the interest of original plaintiff during pendency of the suit, after death of the original plaintiff applied for their impleadment/substitution as plaintiffs in the suit. Initially after death of the original plaintiff, his daughter was substituted. The daughter filed an application for withdrawal of the suit. As soon as the petitioners came to know of the said fact, they filed the application referred to above. The trial court allowed the said application by order dated 4.9.2018 and rejected the application filed by the daughter of the original plaintiff praying for withdrawal of the suit. Aggrieved thereby, the daughter of the original plaintiff filed appeal which has been allowed by the impugned order.
Learned counsel for the petitioners submitted that as soon as the petitioners came to know that the legal representative of the original plaintiff is not taking proper steps to protect the interest of the assignee, they filed application for their impleadment/ substitution as plaintiff. The trial court rightly allowed the said application but the appellate court on wholly irrelevant consideration has interfered with the said order.
On the other hand, Sri Triveni Shankar, learned counsel appearing on behalf of respondent No.4 submitted that the daughter of the original plaintiff had full right to seek withdrawal of the suit and the petitioners are not entitled to be impleaded.
The matter requires consideration.
Sri Shambhu Nath has accepted notice on behalf of respondent No.3 and Sri Triveni Shankar on behalf of respondent No.4. They are granted three weeks time to file counter affidavit.
List in the last week of September, 2019.
Having regard to the facts of the case and the submissions made, the effect and operation of the order of the appellate court dated 4.5.2019 shall remain stayed till the next date of listing."
3. Thereafter, a coordinate bench of this Court in view of the conflicting opinion regarding the right of a subsequent purchaser by virtue of the order dated 09.05.2023 referred the matter to the larger Bench. The reference came to be answered by the larger Bench on 19.01.2026. In the meantime, one Ghanshyam Patel, who happens to be the subsequent purchaser preferred Matter under Article 227 No. 9978 of 2019, Ghanshyam Patel and others vs. Addl. Civil Judge (J.D.), Court No.7, Varanasi and 2 others, in which on 18.01.2020, the following orders have been passed:- "The petitioners had purchased a certain property regarding which a suit being Original Suit No.154 of 1999 was filed. The suit was with regard to the cancellation of the sale deed dated 9.10.1998. The plaintiffs sought impleadment which was allowed on 4.9.2018. The Appellate Court reversed the order on 4.5.2019 but the same has been stayed by this Court on 26.8.2019.
It is the contention of the learned counsel for the petitioners that as per the order dated 4.9.2018 the petitioners have now been impleaded. Under such circumstances, they pray that they be allowed to participate in the suit and the suit itself be now decided as expeditiously as possible.
The Court finds that the pendency of the suit is putting the title of the petitioners under cloud. Under such circumstances, it is directed that the suit being Original Suit No.154 of 1999 (Munnan Devi Vs. Smt. Amrawati Devi) be decided as expeditiously as possible preferably within a period of six months from the date of presentation of a certified copy of this order. Adjournment, if any, may be granted only under very pressing circumstances and that too after imposition of heavy costs on the party seeking adjournment.
With these observations, the petition is, accordingly, disposed of. "
4. The said order was subject matter of challenge before the Hon'ble Apex Court in Special Leave to Appeal (C) No.6526 of 2020, in which orders came to be passed and by virtue of the order dated 06.08.2021 in Misc. Application no. 315 of 2022, the Hon'ble Apex Court, proceeded to pass the following orders:- "Perused the office report dated 14.02.2022 and the letter dated 10.01.2022, sent by the Additional Civil Judge (Junior Division), Varanasi. It appears that the Trial Court is unable to dispose of the case due to pendency of two writ petitions before the High Court between the same parties. We request the High Court of Judicature at Allahabad to expedite the hearing of the said writ petitions, being Writ Petition Nos. 4747 of 2019 and 5892 of 2021, if still pending. The Trial Court shall dispose of the case immediately thereafter in terms of the directions given by the High Court and reiterated by this Court vide order dated 06.08.2021. The Misc. Application is disposed of accordingly. Copy of this order be forwarded to the concerned Trial Court and the Registrar (Judicial) of the High Court of Judicature at Allahabad forthwith through email for information and necessary action."
5. This is how the matter is before this Court.
6. Today, when the matter has been taken up, Sri J.Nagar and Sri Triveni Shankar, who appears for the respondents in the leading petition have sought adjournment on personal grounds.
7. The said adjournment has not been opposed by the learned Senior Counsel for the petitioner.
8. On their request, the matter is adjourned.
9. Put up this case on 16.04.2026 in the additional cause list under the same caption."
18. Sri Atul Dayal, learned Senior counsel for the petitioner in the leading petition submits that the order dated 04.05.2019 passed by the Additional District Judge, Court No. 12, Varanasi in Civil Miscellaneous Appeal No. 143 of 2018 is wholly unsustainable in law. Elaborating the said submission, it is contended that the petitioners, being subsequent purchasers, who have substantial right and not just peripheral rights. It is further submitted that the original suit, being Original Suit No. 154 of 1999, was instituted by the original plaintiff, Smt. Munnan Devi, seeking declaration that the sale deed dated 09.10.1998 executed in favour of Smt. Amrawati Devi is null and void. During the pendency of the said suit, the petitioners in the leading writ petition, by virtue of registered sale deeds dated 23.05.2011, acquired rights over part of the property which is the subject matter of the suit.
19. In view of the aforesaid, it is argued that the petitioners stepped into the shoes of the original plaintiff to the extent of the property purchased by them and, therefore, have a direct and substantial interest in the outcome of the litigation.
20. It is thus contended that merely because, after the death of the original plaintiff, her legal heir, Smt. Phulpatti Devi, is alleged to have entered into a compromise with the defendant, Smt. Amrawati Devi, the same would neither extinguish nor prejudice the independent rights of the petitioners to contest the suit.
21. The submission is that the petitioners cannot be divested of their rights in the suit property by any unilateral act, compromise, or withdrawal of the suit by the legal representative of the original plaintiff, particularly when the petitioners are bona fide purchasers for value and have acquired interest during the pendency of the proceedings.
22. It is further submitted that the registered sale deeds dated 23.05.2011 executed in favour of the present petitioners have neither been challenged nor set aside and continue to remain valid and subsisting in the eyes of law. It is also not the case of any party that the said sale deeds were executed in violation of any interim injunction order passed by a competent court.
23. On the strength of the aforesaid, it is contended th passed therein,at the petitioners, being subsequent purchasers, have acquired a substantial and enforceable interest in the property in dispute. The trial court, therefore, rightly allowed their impleadment application, recognizing their direct stake in the subject matter of the suit. However, the appellate court has reversed the well-reasoned findings of the trial court without assigning any cogent or sustainable reasons, rendering its order legally unsound.
24. It is further urged that the rights of the petitioners are squarely covered by the legal principles laid down by a learned Single Judge of this Court in Meera Rai vs. Additional District Judge & Others, reported in 2018 (1) AWC 331. In view of certain conflicting judgments on the issue, a Coordinate Bench of this Court, by order dated 09.05.2023, referred the matter to a Larger Bench. The Larger Bench, by its order dated 19.01.2026, has affirmed that the law laid down in Meera Rai (supra) represents the correct legal position.
25. In light of the above, it is contended that the appellate court could not have interfered with the order of the trial court, which was in consonance with the binding precedent laid down in Meera Rai(supra).
26. It is also submitted that although a plaintiff has a right to withdraw a suit under Order XXIII Rule 1 CPC, such withdrawal must be permitted by an order of the concerned court, particularly after considering the respective submissions and objections of the parties. It is further contended that the suit cannot be withdrawn merely on a request, especially in a situation where an impleadment application filed by subsequent purchasers was already pending consideration.
27. Thus, it is contended that the withdrawal of the suit at the instance of the legal representative of the original plaintiff, without adequately considering the rights of the impleaded or prospective parties, is impermissible in law and liable to be set aside.
28. Countering the submissions advanced by learned Senior Counsel for the petitioners in the leading writ petition as well as learned counsel for respondent nos. 2 and 3 in the connected petition, Sri Triveni Shankar, appearing for respondent no. 4 in the leading petition and respondent no. 1 in the connected petition, Sri Pratik J. Nagar, learned counsel assisted by Sri Shambhu Nath, appearing for Smt. Phulpatti Devi, daughter of the original plaintiff, have submitted that the order passed by the appellate court does not suffer from any legal infirmity and is not liable to be interfered with in any manner whatsoever.
29. It is contended that whatever rights the petitioners in the leading petition claim to have acquired, the same are independent, disputable, and subject to adjudication in appropriate proceedings, and the same cannot be permitted to obstruct the withdrawal of the suit.
30. It is further submitted that there is no vested right in favour of the petitioners to resist withdrawal of the suit, particularly when the original plaintiff (through her legal representative) and the defendant have entered into a compromise. According to them, the plaintiff is the dominus litis and is entitled to withdraw the suit, and the principle of dominus litis squarely applies in the present case.
31. It is thus submitted that the petitioners cannot insist upon continuation of the suit on the basis of their alleged subsequent purchase, and their rights, if any, are independent and can be adjudicated separately in appropriate proceedings.
32. I have heard learned counsel for the parties at length and have perused the record carefully.
33. The fact is not in dispute. It is not disputed that the original plaintiff, Smt. Mundan Devi, had instituted Original Suit No. 154 of 1999 seeking cancellation of the sale deed dated 09.10.1998 executed in favour of Smt. Amrawati Devi. During the pendency of the said suit, Smt. Munnan Devi executed a registered sale deed dated 23.05.2011 in favour of Smt. Jara Devi and Dhanshyamdas Patel, the latter being one of the petitioners in the leading writ petition.
34. Subsequently, the original plaintiff, Smt. Munnan Devi, expired on 09.02.2013. It is also not in dispute that her husband had predeceased her on 30.12.2012. Thereafter, Smt. Phulpatti Devi, daughter of the original plaintiff, moved an application for substitution, which was duly allowed and she was substituted in place of the deceased plaintiff.
35. After her substitution, Smt. Phulpatti Devi filed an application dated 05.04.2018 (Paper No. 45-C) under Order XXIII Rule 1 read with Section 151 CPC seeking permission to withdraw the suit. The said application was contested by the present petitioners. The present petitioners, in turn, also moved an application dated 19.04.2018 (Paper No. 48-K-1) under Order XXIII Rule 10 read with Section 151 CPC seeking their impleadment and resisting the withdrawal of the suit.
36. The application for withdrawal filed by Smt. Phulpattti Devi was rejected by the trial court. Aggrieved, Smt. Phulpatti Devi preferred Civil Misc. Appeal No. 143 of 2018, which was allowed by the appellate court vide judgment and order dated 04.05.2019. The appellate court thereby set aside the order of the trial court dated 04.09.2018, insofar as it had allowed the impleadment application of the present petitioners as well as rejected the application for withdrawal of the suit, and consequently permitted withdrawal of the suit.
37. Upon rival submissions advanced by learned counsel for the parties, the principal issue that arises for consideration is whether the plaintiff had the legal right to withdraw the suit in question and whether such withdrawal could be permitted despite the impleadment applications filed by the subsequent purchasers.
38. Pertinently, the said issue is no longer res-integra in view of the judgment of a learned Single Judge of this Court in Meera Rai (supra), wherein the legal position was examined in detail. Since conflicting views existed on the point, the matter was referred in the present proceedings to a Larger Bench by order dated 09.05.2023 for determination of the correctness of the ratio laid down in Meera Rai (Supra). The relevant paragraphs are as under:-
"14. The first argument of the learned counsel for the petitioner that with the withdrawal of the present suit by application under Order XXIII, Rule 1, C.P.C. moved by the plaintiff, the assignees lost their right for substitution is found devoid of force inasmuch 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.Rs. and others v. Sheikh Akhtaruzzaman (D) and others, 2004 (2) AWC 1636 and Smt. Raisa Sultana Begam and others v. Abdul Qadir and others. AIR 1966 All 318).15. In case, the said argument of the learned counsel for the petitioner is accepted it would result in multiplicity of litigation inasmuch 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 XXIII, 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 XXII, 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 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. Under Order XXII. 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 XXII. Rule 10. C.P.C. is to curb any such situation any 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 XXII. 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 would itself mean that the court under Order XXII. Rule 10, C.P.C. 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."
39. The Larger Bench of this Court, by its judgment dated 19.01.2026, has held that the decision in Meera Rai (Supra) lays down the correct proposition of law, placing reliance inter alia on the judgment of the Hon'ble Supreme Court in Rajendra Prasad Gupta vs. Prakash Chandra Mishra and Others, AIR 2011 SC 1137.
40. It is significant that the trial court, while passing the order dated 04.09.2018, had relied upon the judgment in Meera Rai (supra), which now stands affirmed as good law by the Larger Bench. In such circumstances, the appellate court ought not to have interfered with the well-reasoned order of the trial court.
41. Nonetheless, there is another aspect of the matter that mere filing of an application under Order XXIII Rule 1 CPC does not result in the suit being automatically deemed to have been withdrawn. There must be due application of mind by the court concerned, particularly where competing claims are already available on record.
42. A specific query was put to learned counsel for the parties as to whether the decision of the Larger Bench dated 19.01.2026 has been subjected to any further challenge or stayed by any competent court. The answer is in the negative.
43. In view of the aforesaid legal position and the overall facts and circumstances of the case, this Court is of the considered opinion that the order dated 04.05.2019 passed by the Additional District Judge, Court No. 12, Varanasi in Civil Misc. Appeal No. 143 of 2018 cannot be sustained and is liable to be set aside.
44. Accordingly, the writ petition are being decided in the following terms:
a. The judgment and decree dated 04.05.2019 passed by the Additional District Judge, Court No. 12, Varanasi in Civil Appeal No. 143 of 2018 (Phulpatti Devi vs. Amrawati Devi and 2 others) is hereby set aside.
b. The petitioners, namely Jeera Devi wife of Subhas Tiwari and Ghanshyam Patel son of Phulchand Patel, are directed to be impleaded as plaintiff-petitioner in Original Suit No. 154 of 1999 (Munnan Devi vs. Amrawati Devi & Others). Consequent action to follow, the trial court shall proceed with and conclude the suit expeditiously in accordance with law.
45. With the aforesaid observations, the instant leading petition stands disposed of.
46. Insofar as the connected petition is concerned, in view of the order passed in the leading petition, the same has become infructuous, thus, the same stands dismissed.
(Vikas Budhwar,J.)
April 16, 2026
Sushma
