Delhi HC Upholds Plaintiff’s Withdrawal Of Plea To Drop Two Defendants, Finding No Clear Abandonment Of Claims In 18-Year Property Suitેણ

Respondent No. 1 instituted a suit in 2008 seeking declaration, possession and damages concerning property at C-21, Anand Niketan, against the petitioners and respondent Nos. 2 and 3.

After the defendants’ evidence was closed, respondent No. 1 applied under Order I Rule 10 CPC to delete respondent Nos. 2 and 3, stating that she would not press the only relief sought against them “for such purpose”.

The Trial Court later permitted respondent No. 1 to withdraw that application and allowed an application for early hearing.

The petitioners challenged that order under Article 227, arguing that the earlier application had already effected an unconditional abandonment of the claim against respondent Nos. 2 and 3 and that the early hearing was improperly advanced.

Order I Rule 10 CPC empowers the court to determine whether a party should be added or struck out; an application seeking deletion is a request for judicial determination, and filing it does not itself remove the party from the suit.

Order XXIII Rule 1 CPC governs abandonment of a suit or part of a claim; whether an application effects abandonment depends on its substance and context, including whether the relinquishment is clear and unequivocal.

Under Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd., the plaintiff’s position as dominus litis is subject to the court’s power to determine whether a party is necessary or proper; Mohinder Jeet Singh v. BMW (India) (P) Ltd. similarly holds that deletion requires a determination that the party is neither necessary nor proper.

Rajendra Prasad Gupta v. Prakash Chandra Mishra recognises that, absent an express bar, the court may entertain an application to withdraw an earlier withdrawal application, having regard to its inherent powers under Section 151 CPC.

Anurag Mittal v. Shaily Mishra Mittal concerned withdrawal of an appeal and did not determine whether the application in this case constituted abandonment under Order XXIII Rule 1 CPC.

Article 227 confers supervisory, not appellate, jurisdiction, to be exercised sparingly.

The Court read the Order I Rule 10 application as a whole and found that the statement about not pressing relief (ii) was expressly linked to the requested deletion by the words “for such purpose”; it was not an independent, unconditional relinquishment of the substantive claim.

Since deletion required a judicial determination under Order I Rule 10, the application’s filing did not itself establish abandonment under Order XXIII Rule 1.

The subsequent record—that respondent No. 2 proposed to call only one witness and respondent No. 1 did not object—was consistent with the application having been prompted by concerns about delay.

The Court also rejected the contention that Rajendra Prasad Gupta was per incuriam: Shiv Prasad v. Durga Prasad addressed a different procedural context, involving Order XXI Rules 89 and 90 CPC, and no irreconcilable conflict was shown.

Given the suit’s age and respondent No. 1’s advanced age, advancing the hearing was justified; the petitioners showed neither material prejudice nor a procedural violation warranting Article 227 intervention.

The petition was dismissed, the order dated 17 September 2024 was upheld, and the pending applications were disposed of; the Court’s observations were confined to the petition and did not address the merits of the suit.