JUDGMENT
S.C. Mohapatra, J.
1. Jurisdiction of the Court to exercise its inherent power under Section 151 of the Code of Civil Procedure to recall an order permitting abandonment of a suit under Order 28, Rule 1. C P.C., is the subject-matter of this Civil Revision at the instance of defendant.
2. In village Bamanpur, there is an aided educational institution named Chinisilpa High School, Bamanpur. Under Section 7 of the Orissa Education Act, 1969, such an institution is required to have a Managing Committee. Dispute in respect of such Managing Committee is the subject-matter in Title Suit No. 91 of 1983.
Where the reliefs sought for are as follows :
(i) To declare the Committee formed by the Inspector of Schools, Ganjam Circle, Berhampur, on 23-5-1983 as void, illegal, unenforceable under law and not binding on the plaintiff-committee ; and
(ii) To grant permanent injunction restraining the defendant from interferring in any manner with the administration of functioning the plaintiff-committee and the day-to-day administration of the school represented by the plaintiff.
3. After bearing, when the suit was posted for judgment, Parikhita Nayak withdrew the suit. Corning to learn of the withdrawal, the opposite party Nos. 1 to 3 filed the application to recall the order of withdrawal of the suit as Parikhita Nayak had no authority to withdraw the same. The said prayer having been allowed, the present application has been filed.
4. There is no dispute that the withdrawal of the suit is under Order 23, Rule 1. C. P. C., which reads as follows :
“1. Withdrawal of suit or abandonment of part of claim. (1) At anytime 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”
Sub-rule (2) which is relevant for the present case reads as follows :
“2. An application for leave under the provision to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.”
5. In the present case, though it is expressed to be withdrawal of the suit, it is really abandonment of the same. Language of Sub-rule (1) makes it clear that it is only the plaintiff who can abandon the suit. For this purpose, the plaintiff is of two categories. One category of the plaintiff is he, who comes under Order 32, C.P.C., and the other, who does not come thereunder. Therefore, Courts are to be very careful while accepting the abandonment of a suit. When the question of abandonment arises; Courts are to first examine whether the plaintiff abandons the suit or some other person claiming to be plaintiff abandons the suit. When the plaintiff comes within the category coming under Order 32, C. P. C, the precondition for abandonment being leave of the Court, the Court gets the opportunity to examine the question. In respect of the other category also, the Court gets the scope to examine the matter since under Sub-rule (4) of Order 23, Rule 1, C. P. C., the Court is to examine the question of awarding costs.
6. There may be cases where the plaintiff has not abandoned the suit and some other person expressing that he is the plaintiff abandons the same which has been accepted by the Court. When it comes to the notice of the Court that the real plaintiff has not abandoned the suit, it has jurisdiction to examine the question in exercise of its inherent power. It would depend on facts and circumstances of each case where such inherent power would be exercised.
7. On perusal of the impugned order, I find that the trial Court has taken into consideration the provisions of the Orissa Education Code, which stood repealed so far as they relate to Managing Committee. It has not taken into account the various conflicting statements contained in the plaint, written statement and the evidence. The enquiry not having been conducted properly to get the reasonable inference from the facts to be found, the trial Court has exercised its jurisdiction with material irregularity. The trial Court has been persuaded by a decision in A. I. R. 1980 All. 20 (Dharma Samaj Society, Aligarh v. Bam Krishna Das and another ) which was rendered when a party approached the Court. The applicants under Section 151, C. P. C, are admittedly not parties. It is to be examined if they have any existing interest in the suit which was affected by abandonment of the suit. In other words, the maintainability of the petition under Section 151, C. P. C, is required to be examined specifically.
8. The impugned order not having been passed on consideration of material issue, is liable to be set aside. The trial Court shall make the enquiry after giving the parties adequate opportunity of proving their case.
9. In the result, the Civil Revision is allowed There shall be no order as to costs.