Bombay High Court
Pandurang Rajaram Inamdar vs Accelya Solution India Ltd on 18 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:12604
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1931 OF 2024
Pandurang Rajaram Inamdar ...Petitioner
Versus
Accelya Solution India Private Ltd. (formerly
Kale Consultants Limited) A Public Limited
Company ...Respondent
Mr. Laxman Deshmukh, for the Petitioner.
Mr. Abhijit Adgule, for the Respondent.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 9th JANUARY, 2025
PRONOUNCED ON: 18th MARCH, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for the parties, heard finally.
2. The petitioner - plaintiff takes exception to an order dated
24th November, 2023 passed by the learned District Judge,
Kolhapur, whereby the application (Exhibit-23) preferred by the
SANTOSH petitioner to abandon a part of the prayer in RCS/1496/2012
SUBHASH
KULKARNI
came to be rejected.
3. Shorn of unnecessary details, the background facts
leading to this petition can be stated as under:
3.1 The respondent - defendant is a Public Limited Company.
The defendant is a leading IT solutions provider to various
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industries. The petitioner was working as a Senior Vice
President - Banking with the defendant company. In the month
of July, 2002, the defendant had fixed annual gross salary of
the plaintiff at Rs.13,50,000/- i.e. Rs.1,12,500/- per month. In
the month of March, 2004 the plaintiff realized that the
defendant had not deposited the salary of the plaintiff in the
designated savings bank account since December, 2003. Thus,
the plaintiff was constrained to institute the suit for recovery of
arrears of salary, declaration and mandatory injunction.
3.2 By way of amendment, the plaintiff incorporated a prayer
of declaration to the effect that the plaintiff is an employee of the
defendant company and the defendant be ordered, by way of
mandatory injunction, to pay the salary as mentioned in
paragraph 3 of the plaint from April, 2004 onwards alongwith
interest at the rate of 12% p.a.
3.3 The defendant resisted the suit. Parties led evidence. By
a judgment and order dated 17th December, 2018, the learned
Civil Judge was persuaded to partly decree the suit to the extent
of recovery of salary for the period of 1 st January, 2004 to 10th
March, 2004 alongwith interest at the rate of 6% p.a. and the
salary of three months at the rate of Rs.1,12,500/- per month in
lieu of notice of termination alongwith interest at the rate of 6%
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p.a. However, the relief of declaration and mandatory injunction
to pay the salary from April, 2004 onwards stood rejected.
3.4 The learned Civil Judge returned the findings, inter alia,
that the plaintiff failed to prove that he is an employee of the
defendant company with effect from 10 th March, 2004 and,
consequently, the plaintiff is not entitled to the declaration as
sought and the salary, as claimed, from April, 2004 onwards.
3.5 Being aggrieved, the plaintiff preferred an appeal, being
RCA/57/2019.
3.6 During the pendency of the appeal, the plaintiff preferred
an application (Exhibit-23) seeking permission to abandon a
part of prayer of declaration i.e., "it be declared that the plaintiff
is an employee of the defendant company." The application was
resisted by the defendant - respondent.
3.7 By the impugned order, the learned District Judge was
persuaded to reject the application observing, inter alia, that by
seeking to abandon the prayer of declaration, the plaintiff was
attempting to nullify the findings given by the trial court in
favour of the defendant and, therefore, permission to abandon a
part of the claim at the stage of hearing of the appeal cannot be
granted.
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4. Being aggrieved, the plaintiff has invoked the writ
jurisdiction.
5. I have heard Mr. Deshmukh, the learned Counsel for the
petitioner, and Mr. Adgule, the learned Counsel for the
respondent, at some length. The learned Counsel for the
parties took the Court through the pleadings and the judgment
of the trial court.
6. Mr. Deshmukh, the learned Counsel for the petitioner,
submitted that the plaintiff was seeking to simply withdraw a
part of the suit claim. The withdrawal or abandonment of a
part of the suit claim was also unconditional. Thus, in view of
the provisions contained in Order XXIII Rule 1(1) such
unconditional abandonment of a part of the claim could not
have been resisted by the defendant. Mr. Deshmukh further
submitted that the plaintiff is entitled to abandon a part of
claim as a matter of right. The learned District Judge was,
therefore, in error in declining to grant such permission to
abandon a part of claim. Such abandonment will neither
change the nature of the suit nor cause prejudice to the
defendant. The learned District Judge, according to Mr.
Deshmukh, completely misconstrued the nature of the right of
the plaintiff to abandon a part of his claim.
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7. A very strong reliance was placed by Mr. Deshmukh on the
judgment of the Supreme Court in the case of Anil Kumar Singh
vs. Vijay Pal Singh and others1, wherein it was enunciated that
when the plaintiff filed an application under Order XXIII Rule 1
and seeks permission to withdraw the suit, he is always at
liberty to do so and, in such case, the defendant has no right to
raise any objection to such prayer except to claim the costs.
8. Per contra, Mr. Adgule, the learned Counsel for the
respondent, strongly opposed the prayer for abandonment of the
prayer of declaration. Mr. Adgule would submit that the learned
District Judge has applied the correct test of likely prejudice to
the defendant on account of such abandonment of the prayer of
declaration at the stage of appeal. Amplifying the submission,
Mr. Adgule would urge, the stage of the proceedings assumes
importance. At the appellate stage, the plaintiff - appellant
cannot be said to have unfettered right to abandon the suit,
especially after a decree is passed against the plaintiff. In that
event, the element of prejudice to the defendant and likelihood
of depriving the defendant of a right accrued on account of the
decree passed by the trial court, would require to be evaluated.
1 (2018) 12 Supreme Court Cases 584.
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9. Mr. Adgule submitted that in the facts of the case, the
entire exercise was actuated by a design to wriggle out of the
situation on account of a clear and categorical declaration by
the trial court that the plaintiff failed to establish that he was
an employee of the defendant, which materially bears upon the
prayer of mandatory injunction to pay salary. Therefore, having
realized the difficulty in seeking such a declaration of
continuance of employment, the plaintiff cleverly intends to
withdraw only a part of a prayer relating to declaration so that
the lacuna in the plaintiff's case can be cured. Such course is
legally impermissible, urged Mr. Adgule.
10. To lend support to the aforesaid submissions, Mr. Adgule
placed reliance on the judgments of the Supreme Court in the
cases of R. Rathinavel Chettiar and another vs. V. Sivaraman
and others2 and Padhiyar Prahladji Chenaji (deceased) through
LRs vs. Maniben Jagmalbhai (deceased) through LRs. and
others3.
11. I have given anxious consideration to the rival
submissions.
12. The contours of the right of the plaintiff to withdraw or the
abandon a part of suit claim under the provisions of Order XXIII
2 (1999) 4 Supreme Court Cases 89.
3 (2022) 12 Supreme Court Cases 128.
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Rule 1(1) of the Code arise for consideration. Is the right of the
plaintiff to withdraw from the suit or abandon a part of claim,
unconditionally, under Order XXIII Rule 1(1) is unfettered?
Does the stage of the proceedings matter? Can the plaintiff be
permitted to withdraw the suit or abandon a part of claim with
equal freedom, at the stage of appeal after a decree is passed by
the trial court? Can the adversary object to the withdrawal of
the suit or abandonment of a part of claim at the stage of
appeal? If so, in what circumstances, the Court can
countenance such objections. These and the like questions bear
upon the determination of the remit of the power of the Court to
permit withdrawal of a suit or abandonment of a part of claim at
the appellate stage.
13. Order XXIII Rule 1 of the Code reads as under:
"Order XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim.-
(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:
Provided that where the plaintiff is a minor or other
person to whom the provisions contained in rules 1 to 14 of
Order XXXII extend, neither the suit nor any part of the claim
shall be abandoned without the leave of the Court.
.......
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff
to institute a fresh suit for the subject-matter of a suit or part of
a claim, it may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or such part of the claim
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with liberty to institute a fresh suit in respect of the subject-
matter of such suit or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the
permission referred to in sub-rule (3), he shall be liable for such
costs as the Court may award and shall be preclude from
instituting any fresh suit in respect of such subject-matter or
such part of the claim."
14. A plain reading of sub-rule (1) of Order XXIII Rule 1 would
indicate that the plaintiff may at any time abandon his suit or
part of his claim qua all or any of the defendants. In a sense,
the right to withdraw the suit or abandon a part of claim is
unqualified. Neither the stage of the suit matters nor there is a
restriction that the suit must be withdrawn as a whole or
against all the defendants.
15. In contrast, sub-rule (3) of Order XXIII Rule 1 confers a
discretion on the Court to grant permission to the plaintiff to
withdraw from the suit or part of the claim with liberty to
institute a fresh suit in respect of the subject matter of such
suit or such part of the claim. The right to withdraw the suit
with liberty to institute a fresh suit is, qualified by the
conditions that: (a) the suit must fail by reason some formal
defect, or (b) there are sufficient grounds for allowing the
plaintiff to institute a fresh suit on the same subject matter.
The discretionary jurisdiction is to be exercised by the Court in
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order to prevent the defeat of ends of justice on technical
grounds.
16. Evidently, the abandonment of the suit under sub-rule (1)
and withdrawal of a suit with liberty to institute a fresh suit on
the same subject matter, stand on a different footing. Distinct
considerations come into play in allowing the abandonment of
the suit under sub-rule (1) and withdrawal with permission to
institute a fresh suit under sub-rule (3). In fact, the permission
of the Court under sub-rule (1) for the abandonment of the suit
or part of the suit claim, subject to the element of costs, is a
matter of course as neither the defendants nor the Court can
compell a plaintiff to prosecute the suit which he does not wish
to. From this standpoint, the right of abandonment of the suit
under sub-rule (1) can be considered to be rather unbridled.
17. In the case of M/s. Hulas Rai Baij Nath vs. Firm K. B.
Bass4, a Three-Judge Bench of the Supreme Court enunciated
that the language of Order XXIII Rule 1(1) of the Code gives an
unqualified right to a plaintiff to withdraw from a suit and if no
permission to file a fresh suit is sought under sub-rule (2) of
that Rule (before the Rule was substituted by 1976 amendment),
the plaintiff becomes liable for such costs as the Court may
award and becomes precluded from instituting any fresh suit in
4 AIR 1968 Supreme Court 111.
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respect of that subject-matter under sub-rule (3) of that Rule.
There is no provision in the Code of Civil Procedure which
requires the Court to refuse permission to withdraw the suit in
such circumstances and to compel the plaintiff to proceed with
it.
18. In the case of Anil Kumar Singh (supra), on which reliance
was placed by Mr. Deshmukh, the Supreme Court, while
highlighting the distinction between the provisions contained in
sub-rules (1) and (3) of Rule 1 of Order XXIII, enunciated that a
mere withdrawal of the suit without asking for anything more
can always be permitted. The observations in paragraphs 23 to
25 are material and, hence, extracted below:
"23. In our considered opinion, when the plaintiff files an
application under Order XXIII Rule 1 and prays for permission
to withdraw the suit, whether in full or part, he is always at
liberty to do so and in such case, the defendant has no right to
raise any objection to such prayer being made by the plaintiff
except to ask for payment of the cost to him by the plaintiff as
provided in sub-rule (4).
24. The reason is that while making a prayer to withdraw the
suit under Rule 1(1), the plaintiff does not ask for any leave to
file a fresh suit on the same subject matter. A mere withdrawal
of the suit without asking for anything more can, therefore, be
always permitted. In other words, the defendant has no right to
compel the plaintiff to prosecute the suit by opposing the
withdrawal of suit sought by the plaintiff except to claim the
cost for filing a suit against him.
25. However, when the plaintiff applies for withdrawal of the
suit along with a prayer to grant him permission to file a fresh
suit on the same subject matter as provided in sub-rule (3) of
Rule 1 then in such event, the defendant can object to such
prayer made by the plaintiff. In such event, it is for the Court to
decide as to whether the permission to seek withdrawal of the
suit should be granted to the plaintiff and, if so, on what terms
as provided in sub-rule (3) of Rule 1."
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19. The aforesaid exposition of law is, however, not stage
agnostic. The aforesaid proposition govern the withdrawal of
the suit or abandonment of a part of a claim before the Court of
first instance, primarily. Once, the trial court adjudicates the
suit and, resultantly, the rights and obligation of the parties are
crystallized, so far as the trial court, different considerations
come into play. With the adjudication of the rights and
liabilities, the elements of vesting or accrual of rights and the
prejudice likely to be caused on account of removing the
substratum of those rights and obligation by withdrawing the
suit itself, in which those rights and obligations were
determined, deserve consideration. The plaintiff, in such a
situation, cannot assert the freedom of withdrawing from the
suit with equal ease.
20. In the case of R. Ramamurthi Iyer vs. Raja V. Rajeshwara
Rao5, the question of withdrawal of the suit arose in the context
of a suit for partition where the provisions of Sections 2 and 3 of
the Partition Act were attracted. The Supreme Court was
confronted with the question whether after a share-holder
applied for leave to buy at a valuation under Section 3, the other
share-holder, who had requested the Court to exercise its power
5 (1972) 2 Supreme Court Cases 721.
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under Section 2 of ordering sale, can withdraw the suit under
Order XXIII Rule 1 of the Code. The Supreme Court held, the
answer to this question will depend on the nature of the right or
privilege which vests in the co-sharer to seek to derive benefit of
the provisions of Section 3. It was difficult to accede to the
contention of the appellant therein that the suit can be
withdrawn by the plaintiff after he has himself requested for a
sale under Section 2 of the Partition Act and the defendant has
applied to the Court for leave to buy at a valuation the share of
the plaintiff under Section 3. The Supreme Court observed as
under:
"12. Coming back to the question of withdrawal of a suit in
which the provisions of Sections 2 and 3 of the Partition Act
have been invoked we find it is difficult to accede to the
contention of the appellant that the suit can be withdrawn by
the plaintiff after he has himself requested for a sale under
Section 2 of the Partition Act and the defendant has applied to
the court for leave to buy at a valuation the share of the plaintiff
under Section 3. In England the position about withdrawal has
been stated thus, in the Supreme Court Practice 1970 at page
334:
"Before Judgment.- Leave may be refused to a plaintiff to
discontinue the action if the plaintiff is not wholly dominus litis
or if the defendant has by the proceedings obtained an
advantage of which it does not seem just to deprive him".
As soon as a shareholder applies for leave to buy at a valuation
the share of the party asking for a sale under Section 3 of the
Partition Act he obtains an advantage in that the court is
bound thereafter to order a valuation and after getting the same
done to offer to sell the same to such shareholder at the
valuation so made. This advantage, which may or may not fulfill
the juridical meaning of a right, is nevertheless a privilege or a
benefit which the law confers on the shareholder. If the plaintiff
is allowed to withdraw the suit after the defendant has gained
or acquired the advantage or the privilege of buying the share of
the plaintiff in accordance with the provisions of Section 3(1) it
would only enable the plaintiff to defeat the purpose of Section
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3 (1) and also to deprive the defendant of the above option or
privilege which he has obtained by the plaintiff initially
requesting the court to sell the property under Section 2
instead of partitioning it. Apart from these consideration it
would also enable the plaintiff in a partition suit to withdrawal
that suit and defeat the defendants claim which, according to
Crump cannot be done even in a suit where the provisions of
the Partition Act have not been invoked."
21. In the case of R. Rathinavel Chettiar (supra) the Supreme
Court after a survey of large body of authorities considered the
question, can the decree be destroyed by making an application
for dismissing the suit as not pressed or unconditionally
withdrawing the suit at the appellate stage, and answered the
same in the following words:
"8. The question in the present case is, however, a little
different. If the suit has already been decreed or, for that matter,
dismissed and a decree has been passed determining the rights
of the parties to the suit, which is under challenge in an appeal,
can the decree be destroyed by making an application for
dismissing the suit as not pressed or unconditionally
withdrawing the suit at the appellate stage. It is this question
which is to be decided in this appeal.
.......
11. Once the matter in controversy has received judicial
determination, the suit results in a decree either in favour of the
plaintiff or in favour of the defendant.
12. What is essential is that the matter must have been
finally decided so that it becomes conclusive as between the
parties to the suit in respect of the subject matter of the suit
with reference to which relief is sought. It is at this stage that the
rights of the parties are crystallised and unless the decree is
reversed, recalled, modified or set aside, the parties cannot be
divested of their rights under the decree. Now, the decree can be
recalled, reversed or set aside either by the Court which had
passed it as in review, or by the Appellate or Revisional Court.
Since withdrawal of suit at the appellate stage, if allowed, would
have the effect of destroying or nullifying the decree affecting
thereby rights of the parties which came to be vested under the
decree, it cannot be allowed as a matter of course but has to be
allowed rarely only when a strong case is made out. It is for this
reason that the proceedings either in appeal or in revision have
to be allowed to have a full trial on merits.
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.......
22. In view of the above discussion, it comes out that where a
decree passed by the trial court is challenged in appeal, it would
not be open to the plaintiff, at that stage, to withdraw the suit so
as to destroy that decree. The rights which have come to be
vested in parties to the suit under the decree cannot be taken
away by withdrawal of suit at that stage unless very strong
reasons are shown that the withdrawal would not affect or
prejudice anybody's vested rights. The impugned judgment of the
High Court in which a contrary view has been expressed cannot
be sustained."
22. The aforesaid pronouncements were followed by the
Supreme Court in the case of Sneh Gupta vs. Devi Sarup and
others6, wherein it was postulated that it is also well-known that
a suit cannot be withdrawn by a party after it acquires a
privilege.
23. In the case of Avenue Supermarts Private Limited vs.
Nischint Bhalla and others7, after following the aforesaid
decisions in the case of R. Rathinavel Chettiar (supra) and Sneh
Gupta (supra), the Supreme Court ruled that where a decree
passed by the trial court is challenged in appeal, it would not be
open to the plaintiff, at that stage, to withdraw the suit so as to
destroy that decree.
24. The position which thus emerges is that, generally, it is
the prerogative of the plaintiff to unconditionally withdraw a suit
or abandon a part of his claim. The plaintiff being dominus litis
cannot be compelled to prosecute the suit if he does not wish to.
6 (2009) 6 Supreme Court Cases 194.
7 (2016) 15 Supreme Court Cases 411.
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This right to withdraw the suit is, in a sense unqualified or
unfettered, till the other parties to the Suit acquire rights or
privilege. With the passing of a decree, normally, the rights and
obligations of the parties are crystallized. Thus, if the suit is
sought to be withdrawn at the stage of appeal, the Court is
required to pose unto itself a question as to whether the plaintiff
can be permitted to withdraw the suit without divesting a party
of the rights and privileges which have accrued in favour of such
party on account of the decree. Thus, the plaintiff does not have
an unqualified or unfettered right under Order XXIII Rule 1(1) of
the Code to withdraw the suit at the appellate stage.
25. If the withdrawal has the effect of depriving one of the
parties to the suit of the benefit of the first court's adjudication
in his favour, such permission for withdrawal may not be
granted. Likewise, if the withdrawal has the effect of destroying
or nullifying the decree affecting thereby the rights of the
parties, vested under the decree, withdrawal cannot be
permitted as a matter of course. It would then be in the sound
discretion of the Court having regard to entire gamut of the
circumstances, especially where despite such adjudication a
strong case is made out in favour of the plaintiff.
26. Reverting to the facts of the case, it is necessary to
examine the nature of the adjudication by the trial court and
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the impact of the withdrawal of the prayer of declaration qua the
employment on the said adjudication.
27. A bare perusal of the judgment of the trial court would
indicate that the pivotal question that arose for determination
was, whether the plaintiff is an employee of the defendant
company and was entitled to seek a declaration that he
continued to be an employee of the defendant company. After an
elaborate consideration of the evidence and the governing
provisions of law, the trial court returned a finding that the
plaintiff failed to prove that he worked as an employee of the
defendant company after 31st March, 2004. In law, the plaintiff
was not entitled to seek a declaration that he continued to be in
the employment of the defendant and the mandatory injunction
to pay the salary month by month, as it involved a contract of
personal service.
28. The adjudication by the trial court has thus resulted in a
declaration in favour of the defendant that with effect from 10 th
March, 2004 the plaintiff is not an employee of the defendant
and the defendant is not liable to pay salary for April, 2004
onwards. In this context, the nature of the abandonment of part
of the prayer deserves to be appreciated. The prayer clause (b), a
part of which the plaintiff seeks to abandon, reads as under:
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"b) It is to be declared that the plaintiff is an employee of the
Defendant Company and Defendant Company be ordered by
way of mandatory injunction to pay the salary as mentioned in
para 3 above to the plaintiff from April 2004 onwards alongwith
interest at the rate of 12% p.a."
29. The italicised portion, the plaintiff seeks to abandon.
Evidently, prayer clause (b) comprises a composite prayer of
declaration and mandatory injunction. However, the prayer of
mandatory injunction seems to be inextricably intermingled
with the prayer of declaration. In fact, the fate of the prayer of
mandatory injunction hinges upon the declaration in the first
part of the prayer clause (b), which the plaintiff now seeks to
abandon. In the context of the nature and structure of prayer
clause (b), I find substance in the submission of Mr. Adgule that
the declaration of employment is the principal prayer in the suit
and injunction is essentially consequential thereto.
30. The reliance placed by Mr. Adgule on the decision of the
Supreme Court in the case of Padhiyar Prahaladji Chenji (supra)
appears to be well-founded. In the said case, it was enunciated
that an injunction is a consequential relief and in a suit for
declaration with a consequential relief of injunction, it is not a
suit for declaration simpliciter. It is a suit for declaration with a
further relief. Whether the further relief claimed in a particular
case as a consequential upon a declaration, is adequate must
always depend upon the facts and circumstances of each case.
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Where once a suit is held not maintainable, no relief of
injunction can be granted.
31. Since the relief of declaration that the plaintiff is an
employee of the defendant company constitutes the linchpin of
the plaintiff's case and the trial court has categorically returned
a finding that the plaintiff failed to establish the said fact and is
not entitled to such declaration, in my considered view, the said
adjudication enures to the benefit of the defendant. The
abandonment of the said prayer, at the appellate stage, without
abandoning the prayer of mandatory injunction, has the
propensity to destroy the right which has accrued in favour of
the defendant on account of the decree passed by the trial
court. In these circumstances, the plaintiff cannot be permitted
to abandon the said prayer as it would cause prejudice to the
defendant.
32. The learned District Judge, thus, committed no error in
declining to grant permission to abandon a part of the prayer. I
am, therefore, not inclined to interfere with the impugned order.
The petition, thus, deserves to be dismissed.
33. Hence, the following order:
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:ORDER:
(i) The petition stands dismissed.
(ii) Rule discharged.
No costs.
[N. J. JAMADAR, J.]
