IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.16311 of 2011
Sunder Ravidas & Ors
Versus
Sakalram @ Sakal Ravidas & Ors
-----------
02. 22.09.2011 Heard the learned counsel for the petitioners.
From perusal of the impugned order dated
12.05.2009 passed by 1st Additional District Judge, Katihar
in Title Appeal No.28 of 1996, it appears that the appellant
appeared before the lower Appellate Court and submitted
that he does not want to proceed with the appeal and
accordingly, he prayed to dismiss the appeal. Therefore,
the T.A. no.28/96 was dismissed.
It is well settled principles of law that so far
the provisions as contained in Order 23 Rule 1 of the
C.P.C. is concerned, it is applicable in cases of appeal also
as has been held by the Apex Court in A.I.R. 1963
1566(Bijayananda Patnaik Vs. Satrughna Sahu and
others. In a reported decision (2005) 1 BLJR (Pat) 323
(Jaya Shankar Singh Vs. Champa Devi and others),
this Court has held that the plaintiff had an unqualified
right to withdraw a suit simplicitor as per provisions of
Order 23 Rule 1 Sub Rule 1 C.P.C. which contains no
provision which require the Court to refuse permission to
withdraw the suit and compel the plaintiff to proceed with
it especially when no set up has been claimed by the
defendant nor any counter claim has been raised by them.
2
From perusal of the impugned order, in the
present case, it appears that the appellant physically
appeared before the Court below and submitted that he is
not willing to proceed with the appeal and, therefore, the
appeal may be dismissed. In such circumstances, the
Court had no option but to allow the prayer of the
appellant and, therefore, the learned Court below has
rightly dismissed the appeal.
The learned counsel for the petitioners
submitted that applications filed by the petitioners were
pending and the learned Court below without deciding the
application filed by the petitioners dismissed the appeal.
The appellant had not filed any application for dismissal.
So far this submission is concerned also, I find no force
because admittedly, in the present case, there is no set up
or counter claim made by the defendants. There is no
provision of law which can compel a party to carry on
litigation. The natural corollary of Order 23 Rule 1 C.P.C.
is to grant permission to withdraw the suit. Here, the
appellant himself submitted before the Court that he is not
desirous of proceeding with the appeal and prayed that the
appeal may be dismissed. In such circumstances, the
Court had no jurisdiction to compel him to carry on the
litigation. Further, merely because some applications have
been filed by the petitioner, in my opinion, it is not bar to
give permission or dismiss the appeal by the Court.
3
So far the submission that the appellant has
not filed any application is concerned, in A.I.R. 2003
Bombay 238 it has been held that as soon as the plaintiff
inform the Court or communicate his intention to the Court
to withdraw the suit it is complete and withdrawal is not
dependent on the Court’s order. Therefore, filing of
application is not condition precedent for giving permission
to withdraw the appeal or dismiss appeal by the Court.
The learned counsel next submitted that the
appellant prayed before the Lower Appellate Court to
dismiss the appeal contending that there has been
compromise between the parties outside the Court but in
fact, there was no compromise between the petitioner and
the appellant, therefore, the appeal could not have been
dismissed. So far this submission is concerned also, I find
no force because the reason for withdrawing or dismissing
the appeal is not relevant for giving permission to withdraw
unconditionally or to dismiss the appeal. Whatever reason
might be there but that reason is for the appellant but in
my opinion, it is not relevant for consideration of the Court
while dismissing the appeal on the prayer of the appellant.
Here, on the prayer of the appellant who appear physically
before the Appellate Court and prayed for dismissal of the
appeal on the ground that he will not prosecute the same.
Now, therefore, the trial court judgment and decree remain
intact which the appellant has challenged.
4
In view of the above settled principles of law, it
cannot be said that the learned Court below exercised a
jurisdiction not vested in it by law or that it exercised the
jurisdiction in a manner unknown to any law. It cannot
also be said that the learned Court below overstepped or
crossed the limits of its jurisdiction or acted in flagrant
disregard of law or the rules of procedure. The supervisory
jurisdiction is exercised for keeping the Subordinate Courts
within the bounds of their jurisdiction and moreover, this
supervisory jurisdiction is not available to either correct
mere error of fact or of law unless the error is manifest and
apparent on the face of the proceedings such as when it is
based on clear ignorance or utter disregard of the
provisions of law and a grave injustice or gross failure of
justice has occasioned thereby.
In such view of the matter, in supervisory
jurisdiction under Article 227 of the Constitution of India
this Court cannot interfere with the impugned order.
Accordingly, this writ application is dismissed.
Saurabh/A.F.R. ( Mungeshwar Sahoo, J.)