Bombay High Court
Naseem Riyaz Khalifa : vs Shafupta Naseem Khalifa & Anr. : on 13 November, 2013
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 561 of 2013
Naseem Riyaz Khalifa : Petitioner
versus
Shafupta Naseem Khalifa & Anr. : Respondents
Mr. P. D. Dalvi for the Petitioner
Mr. Tushar Pimple for the Respondent No.1
Mr. Ajit Ram Pitale for the Respondent No.2
CORAM:- R M SAVANT, J
DATED :- 13th NOVEMBER, 2013.
ORAL JUDGMENT
Rule. With the consent of the Learned Counsel for the parties made
returnable forthwith and heard.
2 The Writ Jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against two orders. The first order being
order dated 22-11-2012, by which order, the Trial Court i.e. the Learned
Civil Judge Senior Division, Kalyan, refused to take the consent terms on
record and rejected the same, the second order is the order dated 23-11-
2012, by which order, the application filed by the Plaintiff for withdrawing
the Suit against the Defendant No.2 was rejected by the Trial court on the
ground that considering the totality of dispute, the withdrawal of the Suit
was not justifiable.
3 The Suit in question has been filed by the Petitioner herein who is
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the original Plaintiff for declaration and perpetual injunction against the
Defendants i.e. the Defendant No.1 who is his wife and the Defendant No.2
who claims to be the power of attorney holder of the Defendant No.1. It
appears that the relations between the Plaintiff and the Defendant No.1
were strained which resulted in the Suit being filed by the Plaintiff against
the said Defendants. It is the case of the Plaintiff that he and his wife have
patched up and accordingly consent terms have been drawn up between
him and his wife for being recorded in the said Suit and for consent decree
being passed in terms of the said consent terms. The Plaintiff it seems had
filed an application on 15-4-2011 for withdrawal of the suit against the
Defendant No.2 and for passing of consent decree in the Suit between him
and the Defendant No.1. It appears that the consent terms were also
tendered in the Court at the time of the hearing of the said application
which consent terms, have been signed by the Plaintiff and the Defendant
No.1. The Defendant No.2 filed a reply and contended that the said
application may not be accepted and the prayer for withdrawal of the Suit
against the Defendant No.2 and for consent decree being passed in terms
of the said consent terms may be rejected. As indicated above, the Trial
Court by the first order dated 22-11-2012 refused to accept the consent
terms and accordingly rejected the same. By the next impugned order
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dated 23-11-2012, the Trial Court also rejected the application for
withdrawal of the Suit against the Defendant No.2 i.e. the Respondent
No.2 herein. The said two orders are the subject matter of the above
Petition.
4 Heard the Learned Counsel for the parties.
5 The Learned Counsel Mr. Dalvi relying upon Order 23 Rule 1 of the
CPC would contend that the Plaintiff would be entitled to withdraw the
Suit against any of the parties and at any stage of the Suit. It is the
contention of the Learned Counsel that in so far as the Defendant No.2 is
concerned, the withdrawal is unconditional and therefore the Trial Court
ought not to have rejected the said application. The Learned Counsel
would contend that the Plaintiff cannot be persuaded to litigation against a
party against whom he does not desire to so prosecute.
6 Per contra, the Learned Counsel Mr. Pitale appearing for the
Respondent No.2 i.e. the Defendant No.2 would contend that in the event,
the consent terms are allowed to be filed in the said Suit and a consent
decree is passed though may be in terms of the settlement arrived at
between the Plaintiff and the Defendant No.1, the same would impact the
rights of the Defendant No.2 in respect of the property in question. The
Learned Counsel would therefore justify the order of rejection of the
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consent terms by the Trial Court. The Learned Counsel would further
contend that considering the over all dispute involved the Trial Court has
rejected the said application.
7 Having heard the Learned Counsel for the parties, I have bestowed
my anxious consideration to the rival contentions of the parties. Before
adverting to the aspect as to whether the Trial Court ought to have
accepted the consent terms, it is necessary to address the issue as to
whether the Plaintiff is entitled to withdraw the Suit against any of the
Defendants to the Suit. For answering the said issue, a reference would
have to be made to Order 23 Rule 1 of the CPC. The same is reproduced
herein under for ready reference:
(1) At any time after the institution of a suit, the
Plaintiff may as against all or any of the defendants
abandon his suit or abandon a part of his claim.
8 Hence in terms of Rule 1, it is open for the Plaintiff to withdraw the
Suit against all or any of the Defendants or even abandon his suit or
abandon his part of a claim against such party. In the instant case, the
Plaintiff desire to withdraw the Suit against the Defendant No.2
unconditionally. The Trial Court therefore erred in rejecting the said
application and especially considering the ambit of Order 23 Rule 1 of the
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CPC. The Trial Court cannot make out a case for a party when the Plaintiff
himself is not interested in prosecuting the Suit against the said party. The
logical consequence if such a course of action is allowed to be permitted,
the Plaintiff would be per force required to prosecute the Suit against the
party against whom he does not really want to prosecute the suit. The
withdrawal would obviously be at the Plaintiff's peril and with whatever
legal consequences that follow. In my view therefore, the second impugned
order dated 23-11-2012 is required to be quashed and set aside and is
accordingly quashed and set aside and the application in so far as the
withdrawal of the Suit against the Defendant No.2 is concerned, is
required to be allowed and is accordingly allowed. The suit would
resultantly stand withdrawn against the Defendant No.2.
9 In so far as the first order dated 22-11-2012 is concerned, the said
order has been passed by the Trial Court when the Defendant No.2 was a
party to the Suit. The consent terms are between the Plaintiff and the
Defendant No.1 obviously they would not bind the Defendant No.2. Since
by the instant order, the Suit has now been allowed to be withdrawn
against the Defendant No.2, the Defendant No.2 would no more be a party
to the Suit. The second impugned order dated 22-11-2012 would
accordingly have to be set aside. It would be open for the Petitioner to file
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a fresh application for taking the consent terms on record and apply to the
Trial Court to pass a decree in terms of the consent terms. If such an
application is made, the Trial Court would undoubtedly decide the same on
its own merits and in accordance with law, uninfluenced by the earlier
order passed by it i.e. the impugned order dated 22-11-2012 and also
taking into consideration the fact that the Defendant No.2 is not a party to
the Suit any more. In the event, the said consent terms are accepted and
the decree is passed in terms of the said consent terms, since the
Defendant No.2 is neither a party to the suit now and is neither a party to
the consent terms, the same would not obviously bind him and the
Defendant No.2 would be free to assert the rights if any, he has by filing
appropriate proceedings.
10 The above Petition is allowed to the aforesaid extent with parties to
bear their respective costs of the Petition.
(R M SAVANT, J)
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