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TMI Blog2017 (11) TMI 1863X X X X Extracts X X X X X X X X Extracts X X X X ..... reof. Coming to the facts of the case on hand, we find that the appellant (plaintiff) had applied for withdrawal of his suit under Order XXIII Rule 1. The Trial Court acceded to the prayer and accordingly granted permission to the appellant to withdraw the suit on payment of cost of ₹ 350/- to the defendants. This the Trial Court did by taking recourse to the powers conferred under Order XXIII sub-rule (4)(a) of Rule 1. 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). The Trial Court and the Revision Court were justified in permitting the appellant (plaintiff) to withdraw the suit whereas the High Court was not right in setting aside the orders of the Revision Court and the Trial Court and giving directions to place defendant No.1 in possession of the suit land - Appeal allowed. - Civil Appeal No. 20007 OF 2017 (ARISING OUT OF SLP (C) No.16749 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit land after purchase of the suit land in partnership with respondent No.5 under the name - M/s Sushma Brick Field. 8) In May 2006, the appellant (plaintiff) filed a suit being Civil Suit No.271/2006 in the Court of First Additional Civil Judge, Hardoi and claimed permanent injunction restraining respondent No. 1 from interfering in his possession over the portion of the suit land. The appellant also applied for grant of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code ) against respondent No. 1 from interfering in his possession over the portion of the suit land which he claimed to have purchased. 9) On 31.05.2006, the Trial Court granted ex-parte temporary injunction restraining respondent No.1 from interfering in appellant's possession over the portion of the suit land as claimed and issued notice of the suit and the application made for grant of temporary injunction to respondent No.1. The appellant, in the meantime, also applied for police protection to ensure that order dated 31.05.2006 is not violated by respondent No.1 which was granted on 12.07.2006. 10) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) 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. 17) 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. 18) Order XXIII Rule 1, which is relevant to decide the question, reads as under: Order XXIII Rule 1 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect matter or part thereof. 21) Sub-rule (5) of Rule 1 says that, if there are more than one plaintiff then unless all the plaintiffs give consent to withdraw the suit, the permission to withdraw the suit cannot be granted under sub-rule (1) or (3). 22) Coming to the facts of the case on hand, we find that the appellant (plaintiff) had applied for withdrawal of his suit under Order XXIII Rule 1. The Trial Court acceded to the prayer and accordingly granted permission to the appellant to withdraw the suit on payment of cost of ₹ 350/- to the defendants. This the Trial Court did by taking recourse to the powers conferred under Order XXIII sub-rule (4)(a) of Rule 1. 23) The effect of this grant of permission to the appellant was that though he was allowed to withdraw the suit but was not permitted to file a fresh suit on the same subject matter. Since only one person had filed the suit and, therefore, sub-rule (5) of Rule 1 was not attracted. 24) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 30) There was, therefore, no justification on the part of the High Court to have travelled in the issues relating to the grant of injunction in relation to the suit land and give direction to the appellant (plaintiff) to place respondent No. 1 in possession of the suit land. 31) The High Court should have seen that the issue of grant of injunction was not the subject matter of the writ petition and, therefore, it had nothing to do with the question of withdrawal of the suit and secondly, the withdrawal of a suit was governed by Order XXIII Rule 1 of the Code whereas the injunction was governed by Order XXXIX Rules 1 and 2 of the Code. Both operate in different spheres. That apart, the defendant did not challenge the ex-parte grant of injunction order in appeal under Order XLIII Rule 1(r) and nor contested it before the Trial Court. It was only in these two forums, the issue of injunction could be considered by the Courts but not in present proceedings which, as mentioned above, were confined o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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