Gujarat High Court
Jayantibhai @ Jayendrasingh Thakor vs Dalsukhbhai Ukabhai Chunara on 16 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7645 of 2025
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JAYANTIBHAI @ JAYENDRASINGH THAKOR
Versus
DALSUKHBHAI UKABHAI CHUNARA & ORS.
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Appearance:
SHASHVATA U SHUKLA(8069) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 16/06/2025
ORAL ORDER
1. Heard learned advocate Mr. Shashvata U. Shukla for the
petitioner.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following relief:-
(A) YOUR LORDSHIPS may be pleased to pass an order quashing
and setting aside the impugned order dated 14.12.2024 passed
below Exh.1 by the 21st Additional Chief Judicial Magistrate,
Vadodara, (Annexure-A) and impugned order dated 14.12.2024
passed below Exh. 120 by the Learned Civil Judge (S.D.),
Vadodara (Annexure-B);
(B) During the pendency and final disposal of the present petition,
YOUR LORDSHIPS may be pleased to stay the operation,
implementation, and execution of the impugned order dated
14.12.2024 passed below application Exh.1 by the 21st Additional
Chief Judicial Magistrate, Vadodara (Annexure-A) and impugned
order dated 14.12.2024 passed below Exh. 120 by the Learned
Civil Judge (S.D.), Vadodara (Annexure-B) and direct the
Respondents to maintain status quo with respect to the suit
properties;
(C) YOUR LORDSHIPS may be pleased to grant an ex-parte ad-
interim reliefs in terms of paragraph No.(B) above;
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(D) Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present case.
3. THE SHORT FACTS OF THE CASE
3.1. Respondent No. 1 herein is the original plaintiff who
had instituted Regular Civil Suit No. 979 of 2010 against the
present petitioner, who is Defendant No. 2, and the rest of the
respondents are co-defendants in the suit.
3.2. The suit filed seeking a declaration and injunction as
prayed for in the suit, wherein an order of status quo was
granted by the Trial Court vide its order dated 20.07.2017 in
relation to the title and possession of the suit properties. For
reasons best known to the plaintiff, he filed a withdrawal
purshis dated 02.12.2024, thereby requested the Trial Court to
allow the plaintiff to unconditionally withdraw the suit.
3.3. It appears that the Trial Court has recorded such
purshis on very date when presented/submitted. Further,
Defendant No. 2 was not given an advance copy of the purshis
filed by the plaintiff.
3.4. The plaintiff executed a registered sale deed on
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05.12.2024 in favor of a third party in relation to the suit
property.
3.5. Having came to know about the withdrawal purshis,
Defendant No. 2 seriously objected to such request made by
the plaintiff by filing its application dated 14.12.2024,
contending, inter alia, that during the pendency of the suit and
the order of status quo operating, the plaintiff executed the
sale deed, thereby committing a breach of the injunction of the
order passed by the Trial Court. The defendant No.2 thus
intended to initiate action against plaintiff under Order XXXIX
Rule 2A of Civil Procedure Code, 1908 (hereinafter referred to
as 'CPC').
3.6. The Trial Court, vide its order dated 14.12.2024, kept
the suit in the Lok Adalat and on the basis of the said
withdrawal purshis, disposed of the suit as withdrawn.
3.7. Consequently, on the very same day, the application
filed by Defendant No. 2 was disposed of by observing that
nothing further is to be done in light of the withdrawal order
passed by the Trial Court.
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4. Being aggrieved and dissatisfied with this set of orders,
the present writ application came to be filed.
5. SUBMISSIONS OF THE PETITIONER - DEFENDANT NO.2
5.1. Learned advocate Mr. Shukla would submit that the
orders impugned in the present application are ex-facie illegal,
erroneous, perverse, arbitrary, and contrary to the provisions
of law and require to be interfered with by this Court while
exercising its supervisory jurisdiction.
5.2. Learned advocate Mr. Shukla would further submit
that the plaintiff could not have been permitted to withdraw
the suit inasmuch as the withdrawal purshis filed below
Exhibit 119 was never served upon the Defendant.
5.3. Learned advocate Mr. Shukla would further submit
that the withdrawal purshis was submitted on 02.12.2024 and
the suit was withdrawn by the Trial Court vide its order dated
14.12.2024, and prior thereto, on 05.12.2024, the plaintiff
executed the registered sale deed in relation to the subject
matter of the suit property in favor of a third party, whereby
the plaintiff committed a breach of the injunction order passed
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by the Trial Court.
5.4. It is submitted that since the plaintiff had committed a
breach of the order of status quo, the defendant was entitled
to initiate contempt proceedings under Order XXXIX, Rule 2A
of CPC, but due to the impugned orders, such right was taken
away from him.
5.5. Learned advocate Mr. Shukla would further submit
that as per the provisions of Order XXIII Rule 1 of the CPC,
the day on which the withdrawal purshis was filed by the
plaintiff should not be considered as the date of withdrawal of
the suit, but the date on which the Trial Court passed the
impugned order is the date required to be considered for
giving effect to the withdrawal of the suit, and in between,
the plaintiff, having executed the sale deed, breached the order
of the status quo, for which the plaintiff was required to be
punished in accordance with law.
5.6. Learned advocate Mr. Shukla would further submit
that as the defendant was not given a liberty to object to the
withdrawal of the suit, having not received an advance copy of
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the withdrawal purshis from the plaintiff, the orders impugned
are in violation of the principles of natural justice and require
to be quashed and set aside.
5.7. Lastly, learned advocate Mr. Shukla would submit that
though the defendant has not prayed for costs to be recovered
from the plaintiff, which was his right to claim even after the
suit is allowed to be withdrawn unconditionally, the defendant
may be given the liberty to approach the Trial Court whereby
he can claim costs from the plaintiff. He has fairly conceded
that such contention of recovering costs was neither raised
before the Trial Court nor in the present writ application but,
being purely a question of law, is raised by him during the
course of his argument.
5.8. Making the above submissions, learned advocate Mr.
Shukla requests this Court to allow the present writ
application.
6. No order and further submissions are made.
7. Points for Determination
(I) Whether, in the facts and circumstances of
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the case, any error was committed by the Trial
Court in permitting the plaintiff to withdraw the suit
unconditionally despite the objection raised by the
defendant?
(II) Whether the date of submission of the
withdrawal purshis by the plaintiff i.e. 02.12.2024,
should be considered as the date of withdrawal of
the suit, or the date of passing of the order by the
Trial Court i.e. 14.12.2024, whereby it formally
passed an order of withdrawal of the suit?
ANALYSIS
8. The issue germane in the present application is no longer
res integra, having already been answered by the Hon'ble
Supreme Court of India, first in the case of Shiv Prasad v.
Durga Prasad, reported in (1975) 1 SCC 405, wherein it was
held thus:-
"12. Even on the interpretation of Rule 89(2) which we have put we
are not prepared to accept the contention put forward on behalf of
the appellant that an application under Rule 90 does not stand
withdrawn until an order to that effect is recorded by the Court. The
applicant merely has to convey to the Court that he is withdrawing
his application under Rule 90 which he had filed prior to the making
of the application under Rule 89. Thereupon he becomes entitled to
make the latter application. Every applicant has a right to
unconditionally withdraw his application and his unilateral act
in that behalf is sufficient. No order of the Court is necessary
permitting him to withdraw the application. The Court may
make a formal order disposing of the application as withdrawn
but the withdrawal is not dependent on the order of the Court.
The act of withdrawal is complete as soon as the applicant
intimates the Court that he withdraws the application.
Respondent 1 has clearly done so here not only by mentioning in
his application under Rule 89 that he was withdrawing his
application under Rule 90 but also by filing a separate application to
that effect, in which not only the statement as to the withdrawal of
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the application under Rule 90 was made but a prayer for the refund
of Rs 2000 was also made. The steps taken on behalf of
Respondent 1 in Miscellaneous Case No. 3/ 1967 even after the
filing of Miscellaneous Case No. 1/1968 were clearly superfluous
and of no effect. The steps taken did not nullify the withdrawal
made by Respondent 1 of his application under Rule 90 and did not
make the withdrawal merely on that account ineffective. Even if any
ambiguity was created by the taking of such steps, later on March
9, 1968 in clearest language it was intimated on behalf of
Respondent 1 that he was not pursuing his application under Rule
90. It was only then that the Court made a formal order recording its
dismissal. In our judgment on the facts and in the circumstances of
this case, the order of the Court made on March 9, 1968 had the
effect of merely recording the withdrawal of the application under
Rule 90 which was already effectively made on January 1, 1968.
Even without that order, the withdrawal was effective on that date."
(Emphasis supplied)
9. The aforesaid principle was again reiterated by the
Hon'ble Supreme Court in the case of Anurag Mittal vs. Shaily
Mishra Mittal, reported in (2018) 9 SCC 691, wherein, taking
note of the provisions of Order 23, Rule 1 of the CPC, the
Hon'ble Supreme Court held as under:-
15. In case of a dissolution of marriage, a second marriage shall be
lawful only after dismissal of the appeal. Admittedly, the marriage
between the appellant and the respondent was on 6-12-2011
i.e. before the order of withdrawal was passed by the Court on
20-12-2011 [Anurag Mittal v. Rachna Mittal, 2011 SCC OnLine
Del 5694] . There is no dispute that the application for
withdrawal of the appeal was filed on 28-11-2011 i.e. prior to
the date of the marriage on 6-12-2011. We proceed to consider
the point that whether the date of dismissal of the appeal
relates back to the date of filing of the application for
withdrawal of the appeal. Order 21 Rule 89(2) of the Code of Civil
Procedure, 1908 (hereinafter referred to as "CPC") provides that
unless an application filed under Order 21 Rule 90 CPC is
withdrawn, a person shall not be entitled to make or prosecute an
application under Order 21 Rule 89 CPC.
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16. In Shiv Prasad v. Durga Prasad [Shiv Prasad v. Durga Prasad,
(1975) 1 SCC 405] , the contention of the appellant therein that an
application filed under the aforesaid Rule 90 does not stand
withdrawn until an order to the effect is recorded by the court, was
not accepted. It was held that every applicant has a right to
unconditionally withdraw his application and his unilateral act in that
behalf is sufficient. No order of the Court is necessary permitting the
withdrawal of the application. This Court concluded that the act of
withdrawal is complete as soon as the applicant intimates the Court
that he intends to withdraw the application.
17. The High Court of Bombay in Anil Dinmani Shankar Joshi v.
Panvel Municipal Council [Anil Dinmani Shankar Joshi v. Panvel
Municipal Council, 2003 SCC OnLine Bom 24, paras 3-4 : AIR 2003
Bom 238, p. 239] followed the judgment of this Court in Shiv Prasad
[Shiv Prasad v. Durga Prasad, (1975) 1 SCC 405] and held that the
said judgment is applicable to suits also. The High Court recognised
the unconditional right of the plaintiff to withdraw his suit and held
that the withdrawal would be complete as soon as the plaintiff files
his purshis of withdrawal.
18. Order 23 Rule 1(1) CPC enables the plaintiff to abandon his suit
or abandon a part of his claim against all or any of the defendants.
Order 23 Rule 1(3) CPC requires the satisfaction of the Court for
withdrawal of the suit by the plaintiff in case he is seeking liberty to
institute a fresh suit. While observing that the word abandonment in
Order 23 Rule 1(1) CPC is "absolute withdrawal" which is different
from the withdrawal after taking permission of the court, this Court
held as follows [K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] :
(Kokila case [K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] , SCC
pp. 463-64, para 12)
"12. The law as to withdrawal of suits as enacted in the
present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his claim
as a matter of right without the permission of the court; in that
case he will be precluded from suing again on the same cause
of action. Neither can the plaintiff abandon a suit or a part of
the suit reserving to himself a right to bring a fresh suit, nor
can the defendant insist that the plaintiff must be compelled to
proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule
(3), be permitted by the court to withdraw from a suit with
liberty to sue afresh on the same cause of action. Such liberty
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being granted by the court enables the plaintiff to avoid the bar
in Order 2 Rule 2 and Section 11 CPC."
19. Order 23 Rule 1(1) CPC gives an absolute right to the plaintiff to
withdraw his suit or abandon any part of his claim. There is no doubt
that Order 23 Rule 1 CPC is applicable to appeals as well and the
appellant has the right to withdraw his appeal unconditionally and if he
makes such an application to the Court, it has to grant it. [Bijayananda
Patnaik v. Satrughna Sahu, (1964) 2 SCR 538 at p. 550 : AIR 1963 SC
1566, p. 1571, para 7]. Therefore, the appeal is deemed to have
been withdrawn on 28-11-2011 i.e. the date of the filing of the
application for withdrawal. On 6-12-2011 which is the date of the
marriage between the appellant and the respondent, Ms Rachna
Aggarwal cannot be considered as a living spouse. Hence, Section
5(i) is not attracted and the marriage between the appellant and the
respondent cannot be declared as void."
(Emphasis supplied)
10. Thus, in view of the aforesaid clear pronouncement of
law, the date of the withdrawal purshis is considered to be the
date of withdrawal of the suit and not the date of the formal
order of withdrawal of suit passed by the Trial Court.
11. In the present case, the plaintiff had filed the withdrawal
purshis below Exhibit 119 on 02.12.2024, which was also
recorded by the Trial Court on the very same day, whereas a
formal order for the withdrawal of the suit came to be passed
by the Trial Court by keeping the suit in the Lok Adalat on
14.12.2024.
12. So, in view of the aforesaid position of law, the deemed
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date of withdrawal of the suit in the present case would be
02.12.2024 and not 14.12.2024, as contended by the learned
advocate Mr. Shukla.
13. Another limb of the argument of the learned advocate
Mr. Shukla would be that no opportunity was given to the
defendant No.2 to object the withdrawal of the suit by the
plaintiff, as defendant No.2 having not been given a copy of
the withdrawal purshis. As per the settled legal position of
law, once a plaintiff decides to withdraw his suit
unconditionally, as per Order XXIII, Rule 1 of the CPC, the
Court has to grant such permission as sought for by the
plaintiff, irrespective of any objection which may be raised by
the defendant. So, in view of same, defendant No.2 can not
cry foul to have not been heard because at time of passing of
the order, he was aware about withdrawal purshish so filed by
plaintiff. In any case, defendant No.2 could not complaint of
violation of principle of natural justice when he had no right
to object withdrawal of suit.
14. At this stage, it is profitable to place reliance on the
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decision of the Hon'ble Apex Court in the case of Anil Kumar
Singh Vs. Vijay Pal Singh and others reported in (2018) 12
SCC 584, more particularly in Para- 15, 16, 23-28, which reads
as under :-
"15) The short question, which arose for consideration before
the High Court in the writ petition filed by defendant No.1
(respondent No.1 herein) was whether the two Courts below were
justified in allowing the application filed by the appellant (plaintiff)
under Order XXIII Rule 1 of the Code and thereby justified in
permitting the appellant (plaintiff) to withdraw the suit.
16) In other words, the only question, which the High Court was
called upon to examine in the writ petition, was whether the appellant's
(plaintiff's) application filed under Order XXIII Rule 1 of the Code
praying for permission to withdraw the suit was rightly allowed by the
Trial Court or not.
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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,
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on what terms as provided in sub-rule (3) of Rule 1.
26) Now coming to the facts of the case, we are of the considered
opinion that the Trial Court and the Revision Court (A.D.J) were
justified in permitting the appellant (plaintiff) to withdraw the suit under
sub-rule (1) of Rule 1. In other words, since the appellant had applied
for withdrawal of the suit under Order XXIII Rule 1, the Trial Court was
justified in permitting withdrawal of the suit subject to the appellant
paying cost of Rs.350/- to respondent No.1 (defendant No.1). Such
order, in our view, was in conformity with sub-rule (3) of Rule 1 and
was rightly upheld by the Revision Court.
27) The High Court, however, committed jurisdictional error in
allowing the defendant's writ petition by finding fault in the orders of the
Trial Court and Revision Court and giving directions to the plaintiff to
place defendant No.1 in possession of the suit land without there being
any basis whatsoever.
28) As mentioned above, the High Court should have seen that the
scope of writ petition was confined to examine the question as to
whether the Trial Court and Revision Court were justified in allowing
the application filed by the plaintiff under Order XXIII Rule 1 of the
Code and to decide this question, the High Court should have confined
its inquiry to examine as to whether the requirements of Order XXIII
Rule 1 were complied with or not but not beyond it."
(emphasis supplied)
15. This Court has also had an occasion to answer the issue
which has been raised by the learned advocate Mr. Shukla, in
the case of Rameshbhai Chhelshankar Oza Himself & As
Director Of Versus Deven Jagnath Joshi & Ors. in Appeal from
Order No. 43 of 1999 having decided on 21-02-2025, wherein,
held as under:-
"16. Thus, what is deduced from the ratio laid down by the
Hon'ble Apex Court in the case of Anil Kumar Singh (supra)
as well as the above cited decisions of the Co-ordinate
Bench of this Court, that in a case where the plaintiff has
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prayed for unconditionally withdrawal of his suit then, the
defendant has no right to object such withdrawal of the suit
except praying for costs.
(Emphasis supplied)
16. Thus, in view of the aforesaid facts and the position of
law as it stands today, there is no merit in the submissions of
the learned advocate Mr. Shukla, which are required to be
turned down.
17. In light of what has been stated hereinabove, this Court
is not in agreement with the submissions made by the learned
advocate Mr. Shukla that there was a breach of the injunction
order of the Trial Court at the instance of the plaintiff in
having executed the sale deed in favor of a third party on
05.12.2024. As such, when the plaintiff had submitted the
withdrawal purshis on 02.12.2024, which was also recorded by
the Trial Court, the suit is deemed to have been withdrawn on
that day.
18. Consequently, when the suit is disposed of as withdrawn
unconditionally, the order of status quo stood vacated
automatically on 02.12.2024 itself. Undisputedly, the plaintiff
having executed the sale deed on 05.12.2024, there is no
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question of any breach of injunction arising on his part, as
alleged.
19. Lastly, regarding the request by the learned advocate Mr.
Shukla to permit the defendant to raise the issue of costs to be
recovered from the plaintiff, it has been fairly admitted by the
learned advocate Mr. Shukla that such issue was neither
pressed into service before Trial Court nor, in fact, raised in
the writ application but was raised for the first time during
the course of his argument.
19.1. Since the defendant has not pressed such issue before
the Trial Court, it would not be appropriate for this Court to
opine on such an issue but to relegate the defendant to the
Trial Court to raise such issue of recovery of costs from the
plaintiff if permissible in law.
19.2. So, if such a plea will be raised by the defendant
before the Trial Court seeking cost from plaintiff, the same
may be decided by the Trial Court after giving an opportunity
of hearing to all the parties concerned and decide it in
accordance with law, as this Court would not like to express
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any opinion so far as the imposition of costs is concerned.
20. CONCLUSION
21. In light of the aforesaid, the issues germane in the writ
application are answered thus:
21.1. There is no illegality, irregularity, and/or any
erroneous or perverse finding on the part of the Trial Court in
allowing the withdrawal of the suit by accepting the
withdrawal purshis of the plaintiff and turn down objection of
defendant No.2 by passing orders impugned in writ application.
21.2. It is hereby held that the suit is deemed to have been
withdrawn on 02.12.2024, i.e., the date of submission of the
withdrawal purshis, and not the date of the impugned order
i.e. 14.12.2024 whereby the Trial Court formally passed an
order for the withdrawal of the suit. Consequently, plaintiff
has not committed any breach of injunction order passed by
Trial Court.
22. Thus, as per the aforesaid observations, discussion, and
reasons, I do not find any merit in the present application,
which is required to be rejected and is hereby REJECTED. No
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order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
