Gujarat High Court
Kantilal Nagjibhai Zalavadiya vs Prakashbhai Chhaganbhai Patel on 24 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15491 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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KANTILAL NAGJIBHAI ZALAVADIYA & ORS.
Versus
PRAKASHBHAI CHHAGANBHAI PATEL & ORS.
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Appearance:
MR ANUJ K TRIVEDI(6251) for the Petitioner(s) No. 1,2,3
DELETED for the Respondent(s) No. 19,21,22,3
HIREN R PANDYA(8760) for the Respondent(s) No. 20
MR RAJENDRA PATEL(645) for the Respondent(s) No. 1
MR RUTVIJ R PATEL(10615) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,2,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/04/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.
Rajendra Patel waives service of notice of rule on behalf of
respondent No.1 and learned advocate Mr. Hiren R. Pandya
waives service of notice of rule on behalf of the contesting
respondent No. 20.
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2. Though served, none appeared on behalf of other
respondents. The presence of other respondents are not
required.
3. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :
"(a) Your Lordships may be pleased to issue a writ of certiorari and/
or any other appropriate writ order or direction in the nature of
certiorari, quashing and setting aside the impugned order dated
21.12.2019 Exh. 113 in Special Civil Suit no. 80 of 2010 passed by the
learned 15th Additional Senior Civil Judge, Surat and be pleased to
permit / allow the said pursis Exh-113;
(b) Pending admission, hearing and final disposal of the present
petition, Your Lordships may be pleased to stay the implementation,
execution and operation of the impugned order dated 21.12.2019
below Exh. 113 in Special Civil Suit no: 80 of 2010 passed by the
learned 15th Additional Senior Civil Judge, Surat;
(c) Such other and further relief as may deem fit and proper in the
interest of justice may be granted in favour of the petitioner."
4. Heard learned advocate Mr. Anuj K. Trivedi for the
petitioners, learned advocate Mr. Rajendra Patel for
respondent No.1 and learned advocate Mr. Amit B. Thakkar
with learned advocate Mr. Hiren Pandya for respondent No.
5. The parties will be referred as far as possible as per
their original position in the suit.
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Short Fact of the case.
6. The petitioners herein are original plaintiff Nos. 3 to 5
who along with respondents No. 1 & 2 and respondent No.3
(deleted) have instituted Special Civil Suit No. 80 of 2010
(herein after referred as "suit in question") against the rest
of the respondents pending before the Principal Senior Civil
Judge, Surat seeking declaration and injunction. The
respondents No. 1 to 3 are original plaintiffs No. 1, 2 and 6
respectively, whereas respondent No. 20 is original
defendant no.17.
6.1 It is a specific case of the plaintiffs that plaintiff No.1-
respondent No.1 herein has executed registered sale-deed
of suit land in question in favour of plaintiffs No. 3 to 6 i.e.
Petitioners and respondent No.3 (deleted) respectively on
21.12.2006. So, they have put in actual and physical
possession and become owner of the suit land.
6.2 The plaintiffs have prayed in the suit that registered
sale deed executed in favour of the original defendants No. 1
to 15 on 03.06.2000 (new number given on 18.11.2004) is not
binding to plaintiffs and no right would accrued in favour of
defendants No. 1 to 15 on the strength of aforesaid sale-
deed which is to be declared null and void.
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6.3 It has been further prayed that a registered sale-deed
executed by defendants No. 1 to 15 in favour of defendant
No.17 on 04.02.2006 is not binding to the plaintiffs and no
right accrued in favour of defendant No.17 which is also
declared to be null and void. There are other prayers also
made in relation to the other transactions entered between
the other defendants in relation to suit property.
6.4 It appears that during the pendency of the aforesaid
suit, plaintiff No. 6 has filed withdrawal pursis below Exh. 61
on 09.05.2012 thereby, he declared to withdraw the suit,
which was recorded by the trial Court. It appears that no
other plaintiffs have objected such withdrawal.
6.5 It appears that defendant No. 17 had filed Special Civil
Suit No. 61 of 2007 against the original plaintiffs as well as
rest of the defendants of suit in question, wherein he has
sought declaration and injunction and questioned the sale-
deed executed by plaintiffs No. 1 & 2 in favour of plaintiffs
No. 3 to 6 on 21.12.2006.
6.6 There appears to be a compromise entered between
respective parties to the Special Civil Suit No. 61 of 2007
except plaintiffs No. 1 & 2 having not signed compromise
pursis. Be that as it may, the trial Court having accepted such
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compromise, passed a compromise decree on 20.07.2019,
whereby, sale-deed dated 03.06.2000 as well as 04.12.2006
which is in fact subject matter of suit in question (Special
Civil Suit No. 80 of 2010) is declared cancelled. Thus, by way
of aforesaid compromise decree, both the registered sale-
deed executed in favour of the defendants of suit in
question is declared cancelled.
6.7 So, in view of the aforesaid compromise decree passed
in the Special Civil Suit No. 61 of 2007, as such most of the
prayers made in Special Civil Suit No. 80 of 2010 - suit in
question would be considered to be allowed.
6.8 Thereafter, the plaintiffs No. 3 to 5 appears to have
filed withdrawal pursis below Exh. 113 contending inter-alia
that no cause of action survive in the suit, so they are
withdrawing the suit. Plaintiffs No. 1 & 2 have strongly
objected such withdrawal of the suit. After hearing the
parties, the trial Court vide its order dated 21.12.2019 has
rejected the prayer of the petitioners, consequently, pursis
given by plaintiffs No. 3 to 5 vide Exh. 113 to withdraw the
suit was rejected. Thus, plaintiffs No. 3 to 5 have challenged
the aforesaid order by way of the present writ application.
Submission of the petitioners-plaintiff No. 3 to 5
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7. Learned advocate Mr. Anuj K Trivedi would submit that
the trial Court has without appreciating the facts and
circumstances of the case and in wrong interpretation of the
provisions of Order 23 rule 1 (5) of CPC erroneously rejected
the withdrawal pursis.
7.1 Learned advocate Mr. Trivedi would submit that it is
undisputed fact that suit land is sold by plaintiff No.1 in
favour of plaintiffs No. 3 to 6 by way of registered sale-deed
executed on 21.12.2006 and having declared in the plaint
that plaintiffs No. 3 to 6 have become absolute owner of the
suit property, could not have objected withdrawal pursis
having lost right, title and interest in suit property.
7.2 Leaned advocate Mr. Trivedi would further submit that
when essential prayers made in the suit as regards the
declaration of earlier registered sale-deed executed in
favour of defendants declared as null and void by way of
declaring it as cancelled in compromise decree dated
20.07.2019 passed by the competent Civil Court in Special
Civil Suit No. 61 of 2007, nothing remains in the suit in
question and due to such reason, petitioners have filed
withdrawal pursis.
7.3 Leaned advocate Mr. Trivedi would further submit that
when plaintiff No.1 having sold land in favour of plaintiffs
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No. 3 to 6 having no right title interest in the suit property,
have no right to object withdrawal of the suit at the instance
of plaintiffs No. 3 to 5. It is submitted no prejudice would
cause to plaintiff No. 1 & 2 if withdrawal pursis submitted by
petitioners would have been accepted by the Court.
7.4 Learned advocate Mr. Trivedi would further submit that
as per settled legal position of law, rule of procedure is
handmaid of justice and Civil Court is required to avoid hyper
technical approach while adjudicating the application.
7.5 Learned advocate Mr. Trivedi would further submit it is
settled legal position of law that co-plaintiff who is objecting
withdrawal of the suit by other plaintiffs, if have already
assigned their right in favour of such plaintiff, such co-
plaintiffs have no right to object withdrawal and provisions
of Order 23 rule 1 (5) of CPC requires to be interpreted
accordingly.
7.6 Lastly he would submit that plaintiff No.6 has also filed
withdrawal pursis in the year 2012 which was not objected
by the plaintiffs No. 1 and 2, thereby, suit qua plaintiff No.6
is already withdrawn - disposed of. So, as per principle of
estoppel also plaintiffs No.1 and 2 can not object withdrawal
of suit by plaintiffs No. 3 to 5.
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7.7 To buttress his argument, learned advocate Mr. Trivedi
would refer and rely upon the following decisions :-
(i) Sugandhi (dead) by LRs & Anr v/s P Rajkumar Rep by
His Power Agent Imam Oli reported in (2020) 10 SCC 706
(relied upon Para-9).
(ii) Ashok Kumar Karla Vs. Wing CDR Surendra Agnihotri
and others reported in (2020) 2 SCC 394 (relied upon Para-
7,14,18, 50)
(iii) Pravinchandra Harilal Selar Vs. Vinodchandra Harilal
Selar and other reported in 2023(3) GLR 1625. (relied upon
Para- 3, 3.1, 5, 7, 7.2 & 8)
Submission respondent No. 20 -defendant No.17
8. Learned advocate Mr. Amit B. Thakkar with learned
advocate Mr. Hiren Pandya for respondent No.20 would
submit that there is gross error committed by the trial Court
while rejecting the impugned withdrawal pursis.
8.1 Learned advocate Mr. Thakkar would further submit
that once plaintiffs No. 3 to 5 who are owner of the suit land
want to withdraw the suit, the plaintiffs No. 1 & 2 can not
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object such withdrawal, having no right title interest in the
suit property especially when no prejudice would cause to
them having sold suit property in favour of plaintiffs No. 3 to
8.2 Learned advocate Mr. Thakkar would further submit
that the provisions of Order 23 rule 1 (5) of CPC could not
have been mechanically applied by ignoring the facts on
record, which are presented before the Court in the suit
proceedings.
8.3 Learned advocate Mr. Thakkar would further submit
that request made by plaintiff No.3, requires to be accepted,
thereby he would adopt the arguments so made by the
learned advocate Mr. Anuj Trivedi for the petitioners.
Submission of respondent No.1- plaintiff No.1
9. Learned advocate Mr. Rajendra Patel for respondent
No.1 would vehemently opposed the present writ
application contending inter-alia that there is no error
committed by the trial Court while rejecting impugned
withdrawal pursis.
9.1 Learned advocate Mr. Patel would further submit that
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as per the provisions of Order 23 rule 1 (5) of CPC, when one
of the plaintiffs object the withdrawal of the suit, the Court
should not grant such withdrawal of the suit and in the light
of such provisions of law, the Court has correctly rejected
the withdrawal pursis.
9.2 Learned advocate Mr. Patel would further submit that
Order 23 rule 1(5) of CPC is mandatory provisions which can
not be ignored by the Court when one of the plaintiffs is
objecting withdrawal of the suit and in that view of the
matter, withdrawal as prayed for by the plaintiffs No. 3 to 5
can not be granted.
9.3 Learned advocate Mr. Patel would further submit that
merely because, plaintiff No. 6 was allowed to withdraw the
suit would not ipso-facto entitled plaintiffs No. 3 to 5 to
withdraw the suit specially when no estoppel would apply
against plaintiffs No. 1 & 2, who has in fact objected such
withdrawal of suit by plaintiffs No. 3 to 5.
9.4 Lastly, learned advocate Mr. Patel would further submit
that the judgements which are cited by the learned advocate
Mr. Anuj Trivedi for the petitioners would not be applicable
to the facts of the case and may not be relied upon by this
Court while adjudicating the present matter.
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9.5 Making the above submissions, learned advocate Mr.
Patel would request this Court to reject the present writ
application.
10. No other and further submissions made by any of
learned advocates appearing for the respective parties.
Point for determination
11.1 Whether in the facts and circumstances of the
case, the trial Court has erroneously rejected withdrawal
pursis filed by plaintiffs No. 3 to 5 due to objection of
plaintiffs No. 1 & 2, thereby, plaintiffs No. 3 to 5 were not
permitted to withdraw the suit ?
11.2 Whether in the facts and circumstances of the
case, plaintiffs No.3 to 5 are entitled to withdraw suit
despite objection being raised by co-plaintiffs as per Order
23 rule 1 (5) of CPC?
Analysis
12.0 The facts which are observed hereinabove are not
in dispute. It appears from the plain reading of Para-9 of the
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plaint that suit land was originally owned by father of
plaintiffs No. 1 & 2 who executed Will on 22.05.2004 which
was registered with Sub Registrar office on 26.05.2004 and
on his sad demise on 05.08.2004, by virtue of said Will, the
plaintiff No.1 became owner of the suit land. As suit land was
bequeathed in favour of plaintiff No.1 by his father then
plaintiffs No. 1 has executed registered sale deed dated
21.12.2006 thereby sold suit property in favour of plaintiffs
No. 3 to 6.
12.1 The plaintiff No.1 having sold suit land in favour of
plaintiffs No. 3 to 6 categorically stated in Para-10 of the
plaint that plaintiffs No. 3 to 6 are become owner of the suit
land by virtue of registered sale-deed on 21.12.2006.
12.2 Furthermore, Special Civil Suit No. 61 of 2007 filed
by defendant No.17 against plaintiffs and other defendants
of Special Civil Suit No. 80 of 2010 is concerned was
compromise albeit, plaintiffs No. 1 & 2 were not signatory of
such compromise but compromise decree passed by the trial
Court on 20.07.2019, would indicate that sale-deeds which
are executed in favour of the defendants of Special Civil Suit
No. 80 of 2010 declared as cancelled. The prayers made in
Special Civil Suit No. 80 of 2010- suit in question are virtually
allowed because of passing of said compromise decree.
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12.3 The plaintiff No.6 has already withdrawn the suit
in the year 2012, reasons best known to them plaintiffs No. 1
& 2 had not objected such withdrawal. Now, plaintiffs No. 3
to 5 who are undisputedly owner of the suit land after
satisfying themselves that no cause of action survived to
continue the suit, filed withdrawal pursis which was objected
by the plaintiffs No. 1 & 2, thereby, the trial Court has placing
reliance to the provisions of Order 23 rule 1 (5) of CPC,
rejected such request of plaintiffs No. 3 to 5.
13. To appreciate the controversy germen in the
application, it is apposite to refer Order XXIII Rule 1 (5) of
CPC, which reads as under :-
"ORDER XXIII- WITHDRAWAL AND ADJUSTMENT OF SUITS
Rule 1 (5) Nothing in this rule shall be deemed to authorise the Court
to permit one of several plaintiffs to abandon a suit or part of a claim
under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part
of a claim, without the consent of the other plaintiff."
13.1 At the first blush of plain reading of the aforesaid
provision would suggest that if any of the plaintiff object the
withdrawal the suit, Court should not permit such
withdrawal by one of several plaintiffs to withdraw such suit
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having objected by other plaintiff. Such provisions of law is
already considered by this Court and also some of the
observations made by the Hon'ble Apex Court in few
decisions, requires to be taken note of while interpreting
aforesaid provision in light of the facts so eloquently
presented in the present writ application.
14. At this stage, I would first like to refer the decision of
this Court in the case of Pravinchandra Harilal Selar
(supra), which held as under :-
"3. As coming out from the plaint, initially plaintiff nos.1 and 2 filed a
suit against defendant - Chunilal Bhulabhai Patel, who is respondent
no.28 herein in both the petitions. However, there are several
amendments whereby defendants have been added and joined as
parties as also plaintiffs to the suit. Initially plaintiffs i.e. petitioners of
both these petitions filed the aforesaid suit for specific performance of
agreement to sale in respect of the suit property filed against Chunilal
Bhulabhai Patel, the only defendant. Later on, both the petitioners -
original plaintiffs transferred their right under an agreement to sale in
favour of plaintiff nos.3 to 6 by an agreement dated 20.02.1991, who
are respondent nos.2 to 5 herein. Therefore, they preferred an
application praying to join them as plaintiff nos.3 to 6 requesting
suitable corrections in the plaint as mentioned in the application,
Exh.179, which came to be granted and plaintiff nos.3 to 6 came to be
joined in the suit with the express consent of original plaintiff nos.1 and
2 i.e. petitioners herein acknowledging agreement dated 20.02.1991
executed in favour of plaintiff nos.3 to 6 and assigning their rights in
their favour. Both the petitioners - plaintiff nos.1 and 2 have in writing
given their express consent to join plaintiff nos.3 to 6 in the suit, and
therefore, the amendment as prayed for vide application, Exh.179
came to be granted. Though there is further assignment of right by
plaintiff nos.3 to 6 in favour of other plaintiffs also, who have also been
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joined as plaintiffs and so on and there are deletion of certain plaintiffs
as parties, which is not in dispute, further details in respect there of is
not necessary to be gone into for determining the present controversy
in these petitions, and therefore, it is not elaborated further.
[3.1] On 30.09.2013 plaintiff nos.3 to 6, 11, 13, 19 to 22, 24 to
28, as plaintiff nos.7 to 10, 12, 14 to 18 and 23 came to be deleted,
vide Exh.515 prayed for abandoning the suit as parties have entered
into settlement out of the Court, which was objected to by the advocate
of plaintiff no.2 i.e. petitioner of Special Civil Application No.15002 of
2014. However, neither plaintiff no.1 i.e. petitioner of Special Civil
Application No.18344 of 2014 nor his advocate were present, and
therefore, notice came to be issued to the advocate representing
plaintiff no.1 and for filing written objections advocate of original
plaintiff no.2 was granted time up to 12.10.2013. Plaintiff no.2 in the
suit vide Exh.517 submitted his written objection for withdrawal of the
suit on the ground that the suit cannot be withdrawn without the
consent of the plaintiffs and requested the Court the he wants to
proceed further with the suit. It appears that plaintiff no.1 did not file
any written objection to the application, Exh.515 for withdrawal of the
suit.
[5.0] As against that, Mr. Jigar Raval, learned advocate for
respondent nos.7 to 26 and Ms. Varsha Brahmbhatt, learned advocate
for respondent nos.28 to 32, submitted that the petitioners i.e. plaintiff
nos.1 and 2 have assigned their right, title and interest in the suit
property in favour of other co-plaintiffs, who were subsequently joined
as plaintiffs in the suit and they confirmed having assigned their right in
favour of other co-plaintiffs, and therefore, they have lost their right in
the suit property, and therefore, according to the submission of the
learned advocate for the respondents, no consent of plaintiff nos.1 and
2 is required for the purpose of withdrawal of the suit. It is further
submitted that not only that, they have assigned their right, title and
interest in the suit property in favour of other co-plaintiffs, and
therefore, they have lost their right in the suit property and they even
stopped participating in the suit. It is further submitted that right to
examine themselves as witnesses in the suit was also closed. It is
further submitted that vide Exh.366 on 11.05.2007 issues were settled
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by the court. Vide order dated 22.07.2011 right to lead evidence on
behalf of plaintiff nos.1 and 2 came to be closed. It is further submitted
that vide Exh.464 plaintiff no.1 on 14.10.2011 requested the Court to
record his deposition in the suit and to delete rest of new plaintiffs
joined in the suit. In the said application, Exh.464, plaintiff no.1 claimed
that he has not assigned his right to any one. He has also requested
for providing Police protection. The said application of plaintiff no.1
came to be rejected vide order dated 19.11.2012. Similarly, plaintiff
no.2 vide application, Exh.498 dated 05.03.2013 requested the Court
to reopen not only his own right but the right of plaintiff nos.1 and 2 to
lead evidence, which came to be closed vide order dated 22.07.2011.
The said application also with detailed reasoned order came to be
rejected by the Court on 04.04.2013. It is further submitted that plaintiff
no.2 challenged that order by filing Special Civil Application No.6928 of
2013 before this Court and when it came up for hearing on 27.03.2014,
learned advocate for plaintiff no.2, who preferred that petition, made a
statement that since he has already filed a substantive suit, being
Special Civil Suit No.232 of 2012, he did not press that petition and
withdrew it. It is further submitted that plaintiff no.1 had not challenged
any order passed below Exh.464 where he prayed for examining
himself as witness, which came to be rejected as aforesaid.
[7.0] Having heard the learned advocates for the appearing
parties as also going through the impugned order and the documents
annexed with it, it emerges that plaintiff no.1 is an advocate by
profession and plaintiff no.2 is his real brother, who jointly filed the suit
for specific performance of an agreement to sale against only
defendant at the relevant time and during pendency of the suit,
whatever right or interest plaintiffs had, as they were plaintiffs in the
suit, they assigned those very rights in favour of plaintiff nos.3 to 6,
who were later on joined in the suit, acknowledging assignment of right
of plaintiff nos.1 and 2 in their favour and with their consent. Not only
that, plaintiff nos.3 to 6 have also further assigned their right in the very
suit property in favour of other plaintiffs. As such, plaintiff nos.1 and 2,
through represented through a lawyer, lost interest in the suit and their
right to lead evidence also came to be closed. Though plaintiff no.2
has prayed for reopening his right to lead evidence on behalf of
plaintiff nos.1 and 2, the said application came to be rejected.
However, plaintiff no.2 preferred a petition before High Court
challenging the said order but ultimately he withdrew the same on the
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ground that he already filed substantive suit, being Special Civil Suit
No.232 of 2012. Thus, even if the suit is to proceed, they would not be
able to produce or bring on record showing their right in the suit
property, more particularly, when rest of the plaintiffs and defendants
have settled their dispute inter se out of the Court and pursuant thereto
other plaintiffs prayed for withdrawal of the suit, of course without the
consent of plaintiff nos.1 and 2. In my opinion, once plaintiff nos. 1 and
2 both have assigned their right and interest in the suit property itself
by way of assignment deed in writing, the persons in whose favour the
said rights are assigned, they entered the shoes of original plaintiffs
i.e. plaintiff nos.1 and 2 and they could have been replaced by plaintiff
nos.3 to 6 and since it is not done, plaintiff nos.1 and 2 cannot take
disadvantage of the same as assignment of their right in favour of
other plaintiffs would not have been without any consideration.
Therefore, having pocketed the consideration, loosing interest even in
the suit, for whatever reason they are continued on record of the suit
as plaintiff nos.1 and 2, will not give them any right to assert their
consent for withdrawal of the suit.
[7.2] So far as plaintiff no.1 is concerned, he is advocate by
profession represented in the suit even by another advocate but he
never objected to even withdrawal whereas plaintiff no.2, though has
objected in writing to the withdrawal, his objections were overruled by
the Court and suit was allowed to be withdrawn despite objection by
plaintiff no.2. However, when plaintiff no.2 himself has already filed
substantive suit and because of that he has also withdrawn the
challenge to refusal of reopening his right to lead evidence, neither
plaintiff no.1 nor plaintiff no.2 i.e. petitioners are unfairly prejudiced
because of withdrawal of the suit. No attempt of such plaintiffs should
be encouraged, more particularly, when they had already assigned
their right and interest in the suit property in favour of other co-plaintiffs
and to raise such, too technical objection, more particularly, when the
other co-plaintiffs entered into the shoes of plaintiff nos.1 and 2 by
assignment deed of the suit property. Such provision though
interpreted to be mandatory by Punjab and Haryana High Court as
also Delhi High Court having persuasive value but on the ground that
no right of party is unfairly prejudiced, in my opinion, for that provisions
cannot be said to be mandatory. Even if, it is held to be mandatory, in
the facts and circumstances of the present case, plaintiff nos.1 and 2
cannot be permitted to take undue advantage of situation, having
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assigned their right and interest in the suit property, possibly may not
be without consideration, to raise such a technical objection when their
right is already protected by way of a substantive suit filed by plaintiff
no.2 joining plaintiff no.1 therein as defendant no.1 in the suit.
Interpreting the said provisions in Sub-Rule 5 of Rule 1 of Order XXIII
of 'the Code' to be procedural for the fact that it protects the right and
interest of the other co-plaintiffs in the suit but when other plaintiffs
have already encashed their right in the suit property by executing
assignment deed, in my opinion, even if it is to be held to be
mandatory provisions, absence of their consent in the present case for
the withdrawal of the suit in such circumstances would not enure to the
benefit of the petitioners herein. No fruitful purpose would be served to
continue with the suit by plaintiff nos.1 and 2, if at all it is permitted,
when their right to lead evidence was already closed and it was
refused to be reopened and those orders have become final. Over and
above that, plaintiff no.2 has already filed substantive suit for the very
same property and have joined plaintiff no.1 as defendant no.1 in the
suit, and therefore, right and interest of both the plaintiffs are already
protected by way of that substantive separate suit filed. If they are
permitted to take undue advantage of such provisions, it would
encourage them, it would be if not dishonest attempt but surely not an
honest attempt. The procedural law prescribed should not be a tyrant
but a servant, not an obstruction but an aid to justice as held by the
Supreme Court in the case of Ashok Kumar Kalra (Supra) and in my
opinion, interest of justice would be served better if these petitions are
rejected.
[8.0] Keeping the overall circumstances in mind and the
reasons assigned hereinabove, I see no reason to entertain these
petitions, and therefore, both the petitions are hereby rejected. Notice
is discharged in both the petitions. Ad-interim relief granted earlier, if
any, stands vacated."
(emphasis supplied)
15. Likewise, the Hon'ble Apex Court in the case of
Sugandhi (supra) reported in (2020) 10 SCC 706 wherein
held as under:
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"[9] It is often said that procedure is the handmaid of justice.
Procedural and technical hurdles shall not be allowed to come in the
way of the court while doing substantial justice . If the procedural
violation does not seriously cause prejudice to the adversary party,
courts must lean towards doing substantial justice rather than relying
upon procedural and technical violation. We should not forget the fact
that litigation is nothing but a journey towards truth which is the
foundation of justice and the court is required to take appropriate steps
to thrash out the underlying truth in every dispute....."
(emphasis supplied)
16. Lastly, it would also profitable to rely upon the decision
of the Hon'ble Apex Court in the case of Ashok Kumar Kalra
(supra) wherein held as under :-
"7. At the outset, there is no gainsaying that the procedural justice
is imbibed to provide further impetus to the substantive justice. It is this
extended procedural fairness provided by the national courts, which
adds to the legitimacy and commends support of general public. On
the other hand, we must be mindful of the legislative intention to
provide for certainty and clarity. In the name of substantive justice,
providing unlimited and unrestricted rights in itself will be detrimental to
certainty and would lead to the state of lawlessness. In this regard, this
Court needs to recognize and harmoniously stitch the two types of
justice, so as to have an effective, accurate and participatory judicial
system.
14. Before we proceed further, we deem it appropriate to note that
any provision under the procedural law should not be construed in
such a way that it would leave the Court helpless [refer to Salem
Advocate Bar Association Case (supra)]. In fact a wide discretion has
been given to the civil court regarding the procedural elements of a
suit. As held by this Court, procedural law is not to be a tyrant but a
servant, not an obstruction but an aid to justice.
18. As discussed by us in the preceding paragraphs, the whole
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purpose of the procedural law is to ensure that the legal process is
made more effective in the process of delivering substantial justice.
Particularly, the purpose of introducing Rule 6A in Order VIII of the
CPC is to avoid multiplicity of proceedings by driving the parties to file
separate suit and see that the dispute between the parties is decided
finally. If the provision is interpreted in such a way, to allow delayed
filling of the counterclaim, the provision itself becomes redundant and
the purpose for which the amendment is made will be defeated and
ultimately it leads to flagrant miscarriage of justice. At the same time,
there cannot be a rigid and hypertechnical approach that the provision
stipulates that the counter claim has to be filed along with the written
statement and beyond that, the Court has no power. The Courts,
taking into consideration the reasons stated in support of the counter
claim, should adopt a balanced approach keeping in mind the object
behind the amendment and to sub serve the ends of justice. There
cannot be any hard and fast rule to say that in a particular time the
counterclaim has to be filed, by curtailing the discretion conferred on
the Courts. The trial court has to exercise the discretion judiciously and
come to a definite conclusion that by allowing the counter claim, no
prejudice is caused to the opposite party, process is not unduly
delayed and the same is in the best interest of justice and as per the
objects sought to be achieved through the amendment. But however,
we are of the considered opinion that the defendant cannot be
permitted to file counterclaim after the issues are framed and after the
suit has proceeded substantially. It would defeat the cause of justice
and be detrimental to the principle of speedy justice as enshrined in
the objects and reasons for the particular amendment to the CPC.
50. It is well settled that procedural rules should not be interpreted
so as to defeat justice, rather than furthering it. This is because
procedural law is not meant to serve as a tyrant against justice, but to
act as a lubricant in its administration. Thus, when Courts set out to do
justice, they should not lose sight of the end goal amidst technicalities.
In some cases, this means that rules that have traditionally been
treated as mandatory, may be moulded so that their object and
substantive justice is not obstructed. It would be apposite to remember
that equity and justice should be the foremost considerations while
construing procedural rules, without nullifying the object of the
Legislature in totality......"
(emphasis supplied)
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17. The conjoint reading of the aforesaid decisions and its
ratio would clearly indicate that any rule of procedure so
prescribed under CPC is handmaid of justice, thereby,
technical hurdle is not to be allowed to come in the way of
the Court while doing substantial justice unless procedure
violation cause serious prejudice to the advisory party.
18. It is also settled legal position that any provision under
procedure of law should not be construed in such a way that
it would leave the Court helpless. Having clearly held that
procedure law is not tyrant but servant.
19. Thus, when the Court requires to interpret any
procedural law as provided under CPC, such factors requires
to be taken into account, thereby, it can advance substantial
justice to the parties albeit, by doing so not to cause any
injustice to advisory party.
20. Keeping in mind, the ratio of the aforesaid decisions
and settled legal position of law when rule of procedure is
handmaid of justice, I would like to state that plaintiff No.1
having already sold suit land in favour of plaintiffs No. 3 to 6
can not have any direct interest in the suit land as he has
already transferred his title in favour of defendants No. 3 to
6 in relation to suit property. In such a factual situation, the
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plaintiff No.1 and in case plaintiff No.2 both can not be
considered as advisory party against the interest of plaintiffs
No. 3 to 6.
21. True, the plaintiffs No. 1 & 2 having joined in the suit,
the sale deeds which are challenged in the suit are allegedly
executed in favour of the defendants prior to the execution
of sale-deed by plaintiff No.1 in favour of plaintiffs No. 3 to
6. Once, those sale-deeds which are so questioned in the suit
in question itself declared cancelled in the aforesaid
compromise decree which is undisputedly not challenged by
the plaintiffs No. 1 & 2, though the parties to Special Civil
Suit No. 61 of 2007, no prejudice would cause to them if
plaintiffs No. 3 to 5 would have allowed to withdraw the suit.
22. In the light of the subsequent development which has
taken place after filing of the suit, the presence of plaintiffs
No.1 & 2 becomes redundant as defendants to the suit have
already accepted the fact that their sale-deeds which are
executed in relation to the suit property is null and void,
thereby declared cancelled.
23. Thus, in the aforesaid peculiar facts and circumstances
of the present case, the plaintiffs No. 1 & 2 have no right
title interest in the suit property, which is undisputedly
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transferred in favour of plaintiffs No. 3 to 6 could not have
right to object the withdrawal of suit by plaintiffs No. 3 to 5.
24. In light of the said facts and position of law, Order 23
ruler 1 (5) of CPC requires to be interpreted to advance
justice to the parties to the suit, rather than using as a tool
to obstruct advancement of justice to the parties. When the
plaintiffs No. 1 & 2 having no right title interest in the suit
property which is even not disputed by the learned advocate
Mr. Rajendra Patel appearing for respondent No.1, then
consent of plaintiffs No. 1 & 2 would not require by plaintiffs
No. 3 to 5 for withdrawal of the suit.
25. Further, learned advocate Mr. Rajendra Patel for
respondent No.1 would enable to substantiate as to why no
objection taken by the plaintiffs No. 1/2 when plaintiff No.6
has withdrawn the suit. Thus, the conduct of plaintiffs No. 1
& 2 speaks volume of their intention to obstruct withdrawal
of the suit by the plaintiffs No. 3 to 5, who having satisfied
that no cause survive to continue the suit, thereby, filed
withdrawal pursis. According to my view, plaintiff No.1 & 2
now estopped in raising such objection against impugned
withdrawal pursis.
26. Lastly, it is not out of place to mention that Civil Court
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is already overburden with huge pendency of the suit and
when the parties to the suit have amicably settled down the
dispute and in such a situation, the plaintiffs want to
withdraw the suit and if objected by some of the plaintiffs,
who are neither having any right title interest in subject
matter of suit nor seriously prejudice in any manner
whatsoever by such withdrawal of suit then, according to my
view, Civil Court should exercise its discretion in favour of
applicant- plaintiff, thereby ought to have permit him to
withdraw the suit in absence of consent of such plaintiffs
having no right title interest and otherwise not seriously
prejudice with withdrawal of the suit.
Conclusion.
27. The upshot of the aforesaid observations, discussions
and reasons would lead to one conclusion that the trial Court
has erroneously and mechanically applied provision of Order
23 rule 1 (5) of CPC by ignoring settled principle of law as
well as not considered one vital fact that while permitting
withdrawal of suit at the instance of plaintiffs No. 3 to 5, no
serious prejudice will be caused to plaintiffs No. 1 & 2, who is
otherwise having no right title interest in the suit property,
having already sold the suit land in favour of the original
plaintiffs No. 3 to 6. Thus, it is hereby hold that plaintiffs No.
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3 to 5 are entitled to withdraw suit in question despite
having plaintiff No. 1 & 2 raised objection against such
withdrawal.
27.1 Having so arrived at with the aforesaid finding,
the order impugned in the present writ application requires
to be interfered by this Court while exercising its power
under Article 227 of the Constitution of India to advance
substantial justice to the petitioners.
27.2 Accordingly, the impugned order dated
21.12.2019 passed by the 15th Additional Senior Civil Judge,
Surat below Exh. 113 in Special Civil Suit No. 80 of 2010 is
hereby quashed and set aside.
27.3 Consequently, present writ application requires to
be allowed, which is hereby allowed thereby, impugned
withdrawal pursis filed below Exh. 113 by plaintiffs No. 3 to 5
in suit in question is hereby allowed.
28. Rule is made absolute to the aforesaid extent. No
order as to costs.
Sd/
(MAULIK J.SHELAT,J)
SALIM/
