Kasturi Rajan & Ors. vs Vatsala Vescio & Ors.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12.10.2026
Date of Decision: 28.10.2026
Date of Uploading:28.10.2026
# CNR No. DLHC010644262024
+ CM(M) 3465/2024 & CM APPL. 56131/2024
KASTURI RAJAN & ORS. .....Petitioners
Through: Mr. Virender Goswami and
Ms. Swati Goswami, Advs.
versus
VATSALA VESCIO & ORS. .....Respondents
Through: Mr. Avneesh Garg, Mr. Utkarsh
Sharma and Mr. Harsh Pal,
Advs.
Mr. Praveen Chauhan, Advs.
for R-2
Mr. Anil Nauriya and
Ms. Sumita Hazarika, Advs. for
R-3
CORAM:
HON'BLE MR. JUSTICE AJAY DIGPAUL
J U D G M E N T
%
1. The present petition under Article 227 of the Constitution of
1
India read with Section 151 of the code of Civil Procedure, 1908
assails the order dated 17.09.2024 passed by the learned Additional
2
District Judge-04, Patiala House Courts, New Delhi , in CS No.
1
Hereinafter “CPC”
2
Hereinafter “Trial Court”
Signature Not Verified
CM(M) 3465/2024 Page 1 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
3
59209/2016 , titled “Vatsala Vescio Vs. Kasturi Ranjan & Ors.” ,
whereby the application filed by respondent no. 1/plaintiff for early
hearing was allowed and, on the same date, respondent no. 1 was
permitted to withdraw the application under Order I Rule 10 CPC
seeking deletion of respondent nos. 2 and 3 from the array of parties.
2. The underlying suit was instituted in the year 2008 by
respondent no. 1 seeking declaration, possession and damages against
the petitioners and respondent nos. 2 and 3 in respect of property
4
bearing no. C-21, Anand Niketan, New Delhi-110021 .
3. Respondent nos. 2 and 3 were initially proceeded against ex-
parte . Their application under Order IX Rule 7 CPC was dismissed,
and the subsequent review application was also rejected. In appeal,
however, they were permitted to participate in the proceedings and file
their written statement. The suit thereafter proceeded to the stage of
final arguments, and the defendants’ evidence was closed on
02.03.2023.
4. It was on 16.01.2024 that respondent no. 1 moved an
application under Order I Rule 10 CPC for deletion of respondent nos.
2 and 3.
5. Subsequently, respondent nos. 2 and 3 sought recall of the order
closing their evidence and permission to lead further evidence. By
order dated 14.02.2024, the learned Trial Court allowed their
application and permitted the reopening of evidence, while keeping
pending the application filed by respondent no. 1 under Order I Rule
10 CPC for deletion of respondent nos. 2 and 3. The petitioners
challenged the said order before this Court in CM(M) 1924/2024,
3
Hereinafter “underlying suit”
4
Hereinafter “suit property”
Signature Not Verified
CM(M) 3465/2024 Page 2 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
wherein interim protection was granted on 20.02.2024 and the order
was subsequently modified on 15.05.2024 to permit certain procedural
steps for recording evidence.
6. By order dated 14.08.2024, this Court disposed of the aforesaid
petition, directing that the application for deletion of respondent nos. 2
and 3 shall be decided by the learned Trial Court in accordance with
law. The question whether respondent no. 1 could withdraw the said
application was left open for consideration by the learned Trial Court,
and the recording of evidence of respondent nos. 2 and 3 before the
Local Commissioner was deferred.
7. Thereafter, respondent no. 1 filed an application seeking early
hearing before the learned Trial Court. The learned Trial Court vide
the impugned order dated 17.09.2024, allowed the application for
early hearing, and permitted respondent no. 1 to withdraw the
application under Order I Rule 10 CPC. The relevant paragraphs of
the impugned order are reproduced herein below:
“36. Now, the Ld. counsel for the plaintiff has sought to
withdraw the application under Order I Rule 10 CPC to which
there is no objection by the defendants no. 5 and 6, however, the
defendants no. 1 to 4 are objecting to the withdrawal of the
application.
37. Unfortunately for the defendants nos. 1 to 4, I am not in
agreement with the submissions made on their behalf. The entire
argument of the defendants no. 1 to 4 is based on the premise that
the application under Order I Rule 10 CPC by the plaintiff was
essentially a withdrawal and abandonment of the suit by the
plaintiff in respect of the defendant nos. 5 and 6 under Order XXIII
rule 1 CPC. However, a holistic reading of the application under
Order I Rule 10 CPC shows that this was not the case. The prayer
clause in the application seeks the deletion of the defendants nos. 5
and 6. The plaintiff has stated in the application under Order I Rule
10 CPC that due to the application of the defendant no. 5 for
reopening evidence and the list of witnesses of defendant no. 5
containing 15 witnesses, the plaintiff apprehended that the suit
Signature Not Verified
CM(M) 3465/2024 Page 3 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
would be delayed, and it was in these circumstances, that the
plaintiff was seeking deletion of the defendants nos. 5 and 6.
Furthermore, a perusal of paragraph 9 of the application would
show that the statement regarding giving up of the prayer (ii )
against the defendants no.5 and 6 was itself conditional on the
deletion of the defendants nos. 5 and 6.
38. The question arises as to whether by mere filing of the
application under Order I Rule 10 CPC, the Court was bound to
delete the defendants nos. 5 and 6 akin to a case of abandonment of
a suit under Order XXIII Rule 1 CPC. The answer is clearly in the
negative. The mere filing ofthe application under Order I Rule 10
CPC did not mean that this court was bound to delete the
defendants nos. 5 and 6. The application was to be adjudicated and
it was only if the Court found that the defendants nos. 5 and 6 were
neither necessary nor proper parties to the suit, then only the Court
could have proceeded to delete the defendants nos. 5 and 6 from
the array of parties. Hence, the application under I Rule 10 CPC
filed by the plaintiff is not akin to an application under Order
XXIII Rule 1 CPC in which case the withdrawal is effective the
moment of filing of the application.
39. Since the application under Order I Rule 10 CPC cannot be
taken as withdrawal or abandonment of the suit against the
defendant no. 5 and 6 under Order XXIII Rule 1 CPC, the
decisions relied upon by the Id. counsel for the defendants nos. 1 to
4 are clearly distinguishable and not applicable to the present case.
40. Since the plaintiff is seeking to withdraw the application
under Order I Rule 10 CPC for deletion of the defendants nos. 5
and 6, and the defendants no. 5 and 6 have no objection to the
same, and the objection of the defendants no. 1 to 4 to the
withdrawal of the application is without any merit, the plaintiff is
permitted to withdraw the application under Order I Rule 10 CPC.
41. Accordingly, the application under Order I Rule 10 CPC
filed by the plaintiff seeking deletion of the defendants nos. 5 and 6
is dismissed as withdrawn.”
8. Aggrieved thereby, the petitioners have approached this Court.
9. At the outset, learned counsel for the petitioner submits that
although the application for deletion of respondent nos. 2 and 3 moved
by respondent no. 1 was captioned under Order I Rule 10 CPC, but a
complete reading of paragraph 9 of the said application and the
Signature Not Verified
CM(M) 3465/2024 Page 4 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
averments therein, reveal that the said application was under Order
XXIII Rule 1 CPC and respondent no. 1 unconditionally abandoned
her claim and the sole relief sought against respondent nos. 2 and 3
qua the agreement to sell dated 20.02.1973. In support of this, reliance
5
is placed on M.C. Mehta v. Union of India and Ors . .
10. It is contended that under Order XXIII Rule 1(1) CPC, an act of
abandonment of the claim or part thereof, gets completed the moment
knowledge of abandonment is brought to the notice of the Court.
6
Reliance is placed on Anurag Mittal v. Shaily Mishra Mittal to
emphasise that abandonment under Order XXIII Rule 1(1) CPC is
“absolute” and a suit is deemed to be withdrawn on the very day an
application is moved in that regard.
11. Further reliance is placed on Raisa Sultana Begam and Ors. v.
7
Abdul Qadir and Ors ., to submit that since the operation of the
application under Order I Rule 10 CPC was automatic upon its filing,
respondent no. 1 could not have withdrawn the
withdrawal/abandonment of the suit qua respondent nos. 2 and 3.
12. In the same context, reliance is placed on Vimal Jain and Ors.
8
v. Govt. of NCT(Delhi) and Ors ., whereby this Court while referring
to the decisions of the Hon’ble Supreme Court in Shiv Prasad v.
9
Durga Prasad and Anr. . , and the Hon’ble Bombay High Court in
Anil Dinmani Shankar Joshi and Ors. v. Chief Officer, Panvel
10
Municipal Council and Ors . , observed that the act of withdrawal is
complete as soon as the applicant files his application as Order XXIII
5
2018 INSC 804
6
(2018) 9 SCC 691
7
1965 SCC OnLine All 380
8
2018 SCC OnLine Del 13650
9
(1975) 1 SCC 405
10
2003 SCC OnLine Bom 24
Signature Not Verified
CM(M) 3465/2024 Page 5 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
Rule 1 CPC permits the plaintiff to abandon the suit/part of the claim
in the suit against all or any of the defendants, at any time after the
institution of the suit.
13. Lastly, it is contended that the learned Trial Court erred by
preponing the matter, as the early hearing application of respondent
no. 1 was signed by an advocate who did not hold the Vakalatnama ,
and in any event, the application failed to disclose any reasonable
cause for urgency.
14. Per contra, learned counsel for respondent no. 1 submits that
respondent no. 1, being the plaintiff, is the dominus litis. She cannot
be coerced into litigating/abandoning claims against any party against
her will. It is submitted that the statement made in paragraph 9 of the
application was conditional upon the deletion of respondent nos. 2 and
3. As respondent nos. 2 and 3 were not ultimately deleted from the
array of parties, she was well within her rights to withdraw the
statement.
15. He further submits that a plaintiff has an inherent right to not
press/withdraw an interlocutory application before an order is passed
on it. In this regard, reliance is placed on Rajendra Prasad Gupta v.
11
Prakash Chandra Mishra , to contend that there is no bar under the
CPC which prevented respondent no. 1 from withdrawing her
application. The relevant portion of the aforesaid judgment is
reproduced hereunder:
“ 4. We do not agree. Rules of procedure are handmaids of justice.
Section 151 of the Code of Civil Procedure gives inherent powers
to the court to do justice. That provision has to be interpreted to
mean that every procedure is permitted to the court for doing
justice unless expressly prohibited, and not that every procedure is
11
(2011) 2 SCC 705
Signature Not Verified
CM(M) 3465/2024 Page 6 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
prohibited unless expressly permitted. There is no express bar in
filing an application for withdrawal of the withdrawal application.”
16. Attention is drawn by the learned counsel for respondent no. 1
to the reference before the Hon’ble Allahabad High Court in Jeera
Devi and another v. Additional District Judge Court No. 12,
12
Varanasi and 2 others , to contend that the petitioner’s reliance on
Raisa Sultana Begam & Ors. (supra) and Anurag Mittal (supra) is
untenable as it is not good in law. The relevant portion of the aforesaid
judgment reads thus:
“49. If allowed 'automatically', besides leading to multiplicity of
proceedings, it would result in obstructing the fair path of justice
itself. The court would become a mere postman or spectator,
entirely dependent on the conduct of a plaintiff (except in cases of
fraud), with no eye on or intent to address the needs of justice. That
dictation of the procedural law to override the substantive law may
never be consistent to the ends of justice. Therefore, it may never
be desirable
50. Accordingly:
Question number (i) is answered in the negative. We hold that the
ratio laid down in Smt. Raisa Sultana Begam (supra) is no
longer a good law in view of the later pronouncement of the
Supreme Court in Rajendra Prasad Gupta (supra).
Question number (ii) framed in the negative, is answered in the
negative. We opine that Meera Ral (supra) is a good law being
consistent to the ratio of the Supreme Court in Rajendra Prasad
Gupta (supra);
51. By way of clarification, we reiterate that Anurag Mittal
(supra) though a decision of the Supreme Court has no
applicability while interpreting Order XXIII Rule 1 of the Code.
That decision is relevant for an interpretation of Section 15 HMA.”
17. In response to the petitioners’ grievance qua allowance of the
early hearing application, counsel for respondent no. 1 contends that
the matter is more than 17 years old and pendency of the present
12
A227 No. - 4747 of 2019, Allahabad High Court
Signature Not Verified
CM(M) 3465/2024 Page 7 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
petition is causing grave hardship to respondent no. 1, who is a super-
senior citizen of 83 years.
18. Similarly, learned counsel for respondent no. 2 submits that
respondent no. 1 moved the subject application considering that
respondent no. 2 had put forth a list of 15 witnesses but later when
only one witness was sought to be examined on respondent no. 2’s
behalf, respondent no. 1 withdrew the said application.
19. It is submitted that filing the application under Order I Rule 10
CPC, in no way amounts to abandonment of claim under Order XXIII
Rule 1 CPC against respondent nos. 2 and 3, as the interests of the
defendants therein are not the same and in fact there are inter-se
disputes.
20. It is further submitted that an application under Order I Rule 10
CPC is merely a request/prayer and final deletion only happens where
the Court determines if a party is a “necessary” or “proper”. In this
respect, reliance is placed on Mumbai International Airport (P) Ltd.
13
v. Regency Convention Centre & Hotels (P) Ltd. & Ors . , to contend
that a plaintiff in any suit, being dominus litis, may choose the persons
against whom he wishes to litigate. Further reliance has been placed
14
on Mohinder Jeet Singh v. BMW (India) (P) Ltd . , whereby this
Court held as follows:
“13. The deletion of a party as a defendant in a suit is therefore
possible only upon arriving at a determination that the party is
neither a necessary nor a proper party to the suit.”
21. In rebuttal, learned counsel for the petitioner contends that the
decision in Rajendra Prasad Gupta (supra), relied upon by
13
(2010) SCC 417
14
2019 SCC OnLine Del 9892
Signature Not Verified
CM(M) 3465/2024 Page 8 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
respondent no. 1, is per incuriam, as it does not take note of the
decision in Shiv Prasad (supra) .
22. Heard rival contentions and perused the record.
23. The controversy arising for consideration is whether the
statement made by respondent no. 1 in paragraph 9 of her application
under Order I Rule 10 CPC amounted to an unconditional
abandonment of her claim against respondent nos. 2 and 3, and
whether the learned Trial Court erred in permitting her to withdraw
the said application. The petitioners have also questioned the order
allowing early hearing on the ground that the application was not
properly instituted and did not disclose sufficient urgency.
24. At the outset, it must be observed that the jurisdiction of this
Court under Article 227 of the Constitution of India is supervisory in
nature. It is not an appellate jurisdiction to be exercised merely
because a party is dissatisfied with an order passed by the subordinate
15
Court. In Shalini Shyam Shetty v. Rajendra Shankar Patil , the
Hon’ble Supreme Court cautioned that the power of superintendence
is to be exercised sparingly and only in appropriate cases where
intervention is warranted to keep subordinate Courts within the
bounds of their authority.
25. The petitioners’ principal submission rests upon the premise
that paragraph 9 of the application filed by respondent no. 1 under
Order I Rule 10 CPC constituted an unconditional abandonment of her
claim against respondent nos. 2 and 3 in respect of the agreement to
sell dated 20.02.1973. Respondent no. 1 disputed this interpretation
and submitted that the statement was conditional upon the deletion of
the said respondents from the array of parties.
Signature Not Verified
CM(M) 3465/2024 Page 9 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
26. Before proceeding further, the distinction between an
application under Order 1 rule 10 CPC and abandonment of a claim
under Order XXIII Rule 1 CPC is material. Both are reproduced
below for ready reference.
“ Order I
10. Suit in name of wrong plaintiff .—(1) Where a suit has been
instituted in the name of the wrong person as plaintiff or where it is
doubtful whether it has been instituted in the name of the right
plaintiff, the Court may at any stage of the suit, if satisfied that the
suit has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to
do, order any other person to be substituted or added as plaintiff
upon such terms as the Court thinks just.
(2) Court may strike out or add parties.—The Court may at any
stage of the proceedings, either upon or without the application of
either party, and on such terms as may appear to the Court to be
just, order that the name of any party improperly joined, whether as
plaintiff or defendant, be struck out, and that the name of any
person who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be necessary in
order to enable the Court effectually and completely to adjudicate
upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next
friend or as the next friend of a plaintiff under any disability
without his consent.
(4) Where defendant added, plaint to be amended.—Where a
defendant is added, the plaint shall, unless the Court otherwise
directs, be amended in such manner as may be necessary, and
amended copies of the summons and of the plaint shall be served
on the new defendant and, if the Court thinks fit, on the original
defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15
of 1877), Section 22, the proceedings as against any person added
as defendant shall be deemed to have begun only on the service of
the summons.”
XXXXXX
Order XXIII
1. Withdrawal of suit or abandonment of part of claim —
(1) At any time after the institution of a suit, the plaintiff may as
15
(2010) 8 SCC 329
Signature Not Verified
CM(M) 3465/2024 Page 10 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
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.
(2) An Application for leave under the proviso 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.
(3) Where the Court is satisfied,—
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of a
claim, it may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or such part of the claim
with liberty to institute a fresh suit in respect of the subject-matter
of such suit or such part of the claim.
(4) Where the plaintiff—
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission
referred to in sub-rule (3), he shall be liable for such costs as the
Court may award and shall be precluded from instituting any fresh
suit in respect of such subject matter or such part of the claim.
(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 plaintiffs.”
27. The former concerns the constitution of parties to a suit,
whereas the latter concerns relinquishment of the suit or a part of the
claim. The legal effect of an application must be determined by
reading it as a whole, having regard to its contents, the relief sought
and the context in which the relevant statement was made. Neither its
caption nor an isolated averment can be conclusive. The question is
whether the plaintiff has clearly and unequivocally relinquished the
claim, independently of the relief sought in the application.
Signature Not Verified
CM(M) 3465/2024 Page 11 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
28. The Hon’ble Supreme Court in Nak Engineering Company
16
Pvt. Ltd. v. Tarun Keshrichand Shah & Ors . , while relying on
Mumbai International Airport (P) Ltd. (supra), explained the
principle of dominus litis, under which a plaintiff ordinarily chooses
the persons against whom the suit is to be pursued. However, this
principle operates subject to the Court’s power under Order I Rule 10
CPC to determine whether a person is a necessary or proper party to
the proceedings. A plaintiff’s choice of parties does not dispense with
that judicial determination where the question of deletion arises.
29. In Mohinder Jeet Singh (supra) , this Court reiterated the same
principle and held:
“ 13. The deletion of a party as a defendant in a suit is therefore possible
only upon arriving at a determination that the party is neither a necessary
nor a proper party to the suit.”
The aforesaid principle makes it clear that an application seeking
deletion of a defendant is a request for a judicial determination. The
mere filing of such an application does not, by itself, result in the
deletion of that defendant. Equally, the filing of the application does
not necessarily establish that the plaintiff has abandoned the
substantive claim against that party. The effect of any accompanying
statement must be assessed separately, in the context of the application
as a whole.
30. In the present case, the application filed by respondent no. 1
expressly sought deletion of respondent nos. 2 and 3 from the array of
parties under Order I Rule 10 CPC. The petitioners rely upon
paragraph 9, in which respondent no. 1 stated that she would not press
16
(2026) 3 SCC 631
Signature Not Verified
CM(M) 3465/2024 Page 12 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
relief (ii), being the only relief claimed against respondent nos. 2 and
3. However, that statement cannot be read in isolation. It must be
considered alongside the preceding averments, which explain why the
application for deletion was filed. The relevant portions of the
application read as follows:
“8. Recently, the said Defendant Nos. 5 and 6 filed successive
applications for re-opening their right of leading evidence in the
present matter. At one occasion, their application for permission to
cross-examine witnesses of Defendant Nos.1 to 4 was allowed
subject to cost of Rs.20,000/- (Order dated 06.06.2023). Even
thereafter, the said Defendants came up with another application to
lead further evidence in the present suit. It is pertinent to mention
here that list of witnesses filed by the said Defendants contains as
many as 15 witnesses, all of whom have no relevance with the
issue framed qua Defendant Nos. 5 & 6. Even the Hon’ble High
Court, while disposing of CM(M) No. 1206/2023 filed by
Defendant Nos. 5 and 6 against order dated 07.10.2023 of this
Hon’ble Court (whereby this Hon’ble Court had placed the matter
for final arguments) has observed that the Defendant Nos. 5 and 6
have been trying to delay the
proceedings of the present suit.
9. Under the aforesaid circumstances, the Plaintiff seeks to
delete the Defendant Nos. 5 and 6 from the array of parties of the
present suit. The Plaintiff, for such purpose, shall not press relief
(ii) of the present suit, which is the only relief sought against
Defendant Nos. 5 and 6 in the present suit.”
31. A reading of the above averments shows that respondent no. 1
sought deletion of respondent nos. 2 and 3 in the backdrop of the
delay allegedly caused by their applications for leading further
evidence. The statement regarding not pressing relief (ii) was made in
paragraph 9 of the said application in which deletion was sought and
was expressly linked to that request by the words “for such purpose”.
The application, therefore, sought a particular procedural outcome,
Signature Not Verified
CM(M) 3465/2024 Page 13 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
namely, deletion of respondent nos. 2 and 3, with the non-pressing of
relief (ii) stated in that context.
32. The statement must be understood in that setting. Respondent
no. 1 was seeking deletion of respondent nos. 2 and 3 so that the suit
could proceed without further delay attributable to their participation.
The application was not framed seeking unconditional abandonment
of the substantive claim, irrespective of whether the defendants were
deleted. The learned Trial Court was, therefore, justified in examining
the application according to its substance and the relief actually
sought.
33. The subsequent proceedings also lend support to this
understanding. The order dated 14.02.2024 records that respondent no.
2 had restricted its evidence to one witness, namely, Mr. M. Sena
Prasad, and that respondent no. 1 had no objection to that course. The
relevant portion reads:
“7. The defendant no. 5 has filed an application under Order
XVIII Rule 17 CPC seeking recall of the order dated 02.03.2023
whereby the right of the defendant no. 5 to lead evidence was
closed.
8. Ld. Counsel for the defendant no. 5 has already submitted
today that the defendant would only be examining one witness i.e.
Mr. M. Sena Prasad and no other witnesses. Ld. Counsel for the
defendant no. 5 has submitted that the order dated 02.03.2023 may
be recalled in the interest of justice so that the defendant no. 5 may
examine the only one witness.
9. Ld. Counsel for the plaintiff submits that in order to avoid
any technical objections at subsequent stages, he has no objection
if the defendant no. 5 is permitted to examine the only one witness
as has been stated by the ld. Counsel for the defendant no. 5.
xxx xxx xxx
Signature Not Verified
CM(M) 3465/2024 Page 14 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
15. Ld. Counsel for the defendant no. 5 has submitted that to
expedite the recording of evidence of the sole witness of the
defendant, a Local Commissioner may be appointed at the expense
of the defendant no. 5.
16. Ld. Counsel for the plaintiff submits that he has no
objection to this.”
34. The petitioners have also relied upon Raisa Sultana Begum
(supra) and Anurag Mittal (supra) to contend that abandonment or
withdrawal takes effect upon the filing of the application and cannot
thereafter be recalled. These decisions, however, must be considered
in the context of the provisions and circumstances with which they
dealt. In Anurag Mittal (supra), the Hon’ble Supreme Court was
concerned with an unconditional application for withdrawal of an
appeal and held that the withdrawal took effect from the date of filing.
The question here is not merely whether a plaintiff may abandon a
claim under Order XXIII Rule 1 CPC, but whether the prayer made in
an application under Order I Rule 10 CPC constituted such
abandonment in the first place.
35. The averment in paragraph 9 of the application cannot be
treated as an independent and unconditional abandonment of the claim
under Order XXIII Rule 1 CPC, as discussed in the preceding para.
The present case is distinguishable from Anurag Mittal (supra), not
because the principle stated therein is inapplicable to abandonment of
a claim, but because the averment in question, read in its context, does
not establish an unequivocal abandonment. The petitioners’ reliance
on the said decision does not, therefore, advance their case.
36. In Rajendra Prasad Gupta (supra), the Hon’ble Supreme Court
considered whether an application seeking withdrawal of an earlier
Signature Not Verified
CM(M) 3465/2024 Page 15 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
application for withdrawal of a suit could be entertained. The Court
recognized that the Code of Civil Procedure does not prohibit the
filing of such an application and observed that Section 151 CPC
preserves the inherent powers of the Court to secure the ends of
justice. The Court held:
“4. We do not agree. Rules of procedure are handmaids of justice. Section
151 of the Code of Civil Procedure gives inherent powers to the court to
do justice. That provision has to be interpreted to mean that every
procedure is permitted to the court for doing justice unless expressly
prohibited, and not that every procedure is prohibited unless expressly
permitted. There is no express bar in filing an application for withdrawal
of the withdrawal application.”
The decision recognizes that mere filing of an application does not, in
every situation, preclude the Court from considering a subsequent
request for its withdrawal. The legal effect of the original application
and the nature of the relief sought must be examined.
37. Further, the Full Bench of the Allahabad High Court in Jeera
Devi (supra) considered the effect of the decision in Rajendra Prasad
Gupta (supra) on the earlier view expressed in Raisa Sultana Begum
(supra) . The Full Bench held that the view in Raisa Sultana Begum
(supra) regarding the automatic effect of withdrawal upon the mere
filing of an application could no longer be regarded as good law in
view of the later pronouncement of the Hon’ble Supreme Court in
Rajendra Prasad Gupta (supra), the judgment also clarifies that
Anurag Mittal (supra), though a decision of the Hon’ble Supreme
Court, was concerned with a different statutory context and did not
govern the interpretation of Order XXIII Rule 1 CPC.
Signature Not Verified
CM(M) 3465/2024 Page 16 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
38. The petitioners, while relying on State of Assam v. Ripa
17
Sarma , have contended that Rajendra Prasad Gupta (supra) is per
incuriam for not considering the decision of the Hon’ble Supreme
Court in Shiv Prasad (supra) . In that case, the Hon’ble Supreme
Court held that a decision rendered in ignorance of earlier judgments
of Benches of co-equal strength could not be elevated to the status of a
binding precedent. The decision, however, does not assist the
petitioners in the facts of the present case. Before the principle can be
invoked, it must be established that the decision in question was
rendered in ignorance of a binding precedent. To sustain their
contention, it must be shown that Rajendra Prasad Gupta (supra)
was rendered in ignorance of a binding precedent governing the issue
before the Court.
39. In any event, the petitioners have not demonstrated an
irreconcilable conflict between the decisions in Shiv Prasad (supra)
and Rajendra Prasad Gupta (supra). In Shiv Prasad (supra), the
Hon’ble Supreme Court considered the interaction between Order
XXI Rules 89 and 90 CPC in execution proceedings. The Court held
that an application under Order XXI Rule 89 could not be made or
prosecuted while an application under Order XXI Rule 90 remained
pending, and considered the effect of the unconditional withdrawal of
the latter application upon intimation to the Court .
40. Rajendra Prasad Gupta (supra) , on the other hand, dealt with
the maintainability of an application seeking withdrawal of an earlier
application for withdrawal of a suit and the scope of the inherent
powers preserved by Section 151 CPC. The two decisions arose in
different procedural contexts and addressed different questions. The
17
(2013) 3 SCC 63
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
Signature Not Verified
CM(M) 3465/2024 Page 17 of 19
absence of a reference to Shiv Prasad (supra) in Rajendra Prasad
Gupta (supra) does not, by itself, establish that the latter decision was
rendered in disregard of a binding precedent directly governing the
issue before it. The petitioners’ challenge to the impugned order, on
this ground, therefore, cannot be sustained.
41. The remaining challenge concerns the order allowing early
hearing of the application. The suit has been pending since 2008, and
the application for deletion of respondent nos. 2 and 3 remained
unresolved. The advanced age of respondent no. 1 was also relevant
circumstance in considering the request for an earlier hearing. In these
circumstances, the learned Trial Court was justified in advancing the
hearing to facilitate the progress of the proceedings. No material has
been shown to establish that the order was passed arbitrarily or caused
prejudice to the petitioners.
42. The objection that the application was signed by an advocate
who did not hold the Vakalatnama does not, in the absence of a
demonstrated procedural violation affecting the validity of the order or
causing prejudice to the petitioners, warrant interference. Nor have the
petitioners shown that the advancement of the hearing deprived them
of an opportunity to present their case.
43. The impugned order, read as a whole, discloses no jurisdictional
error warranting interference under Article 227 of the Constitution of
India. The petitioners have not established that the learned Trial Court
acted beyond its jurisdiction or committed any patent error calling for
the exercise of supervisory jurisdiction.
44. Accordingly, the petition is dismissed as being devoid of merit.
The impugned order dated 17.09.2024 is upheld. The observations
made herein are confined to the challenge raised in the present petition
Signature Not Verified
CM(M) 3465/2024 Page 18 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15
and shall not be construed as an expression of opinion on the merits of
the underlying suit.
45. Pending application(s), if any, stands disposed of.
46. The judgment be uploaded on the website forthwith.
AJAY DIGPAUL, J.
OCTOBER 28, 2026/ ar/dd/as
Signature Not Verified
CM(M) 3465/2024 Page 19 of 19
Signed By:ANKITA RAI
Signing Date:28.10.2026
20:07:15