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A227 No. - 4747 of 2019

Reserved on: 09.10.2025

Delivered on: 19.01.2026

HIGH COURT OF JUDICATURE AT ALLAHABAD

MATTERS UNDER ARTICLE 227 No. - 4747 of 2019

Jeera Devi and another

…..Petitioner(s)

Versus

Additional District Judge Court No.12, Varanasi and 2 others

…..Respondent(s)

Counsel for Petitioner(s):Brij Raj

Counsel for Respondent(s):Pratik J. Nagar, Shambhu Nath,

Triveni Shanker

Court No. - 3

HON'BLE SAUMITRA DAYAL SINGH, J.

HON'BLE RAJEEV MISRA, J.

HON'BLE AJAY BHANOT, J.

1. The present reference to a larger bench has arisen on a reference

made by a learned single judge, on two questions of law framed by

his lordship:

“(i) Whether the decision of this Court in Raisa Sultana Begam,

AIR 1996 Allahabad 318 holding that an application under

Order XXIII Rule 1 of the Code of Civil Procedure, 1908 once

moved, leads to a withdrawal of the suit ipso facto without the

Court passing an affirmative order, is still good law, in view of

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the subsequent decision of the Full Bench in The Sunni Central

Board v. Sri Gopal Singh Visharad, 2010 ADJ 1 (SFB)(LB)

and the Supreme Court in M. Siddiq (dead) through legal

representatives (Ram Janmabhoomi Temple case) v. Mahant

Suresh Das and others, (2020) 1 SCC 1 and Anurag Mittal v.

Shaily Mishra Mittal, (2018) 9 SCC 691 ?

(ii) Whether the decision in Meera Rai v. Additional Sessions

Judge and others, 2017 (12) ADJ 817 does not lay down the law

correctly, in view of the law laid down by the Supreme Court in

Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691 on

the issue if the mere lodging of an application to unconditionally

withdraw a suit under Order XXII Rule 1 of the Code of Civil

Procedure, 1908 operates as a withdrawal of the suit ipso facto

and without an affirmative order?“

2. The facts giving rise to the present reference have been

summarised by the learned single judge in the reference order, as

below:

“2. The facts giving rise to this petition, in necessary detail, are

these :

Plot No. 40 admeasuring 0.243 hectare and Plot No. 156

admeasuring 0.72 decimal, situate in Village Mauza Saraimugal,

Pargana Athagaon, Tehsil Pindra, District Varanasi was recorded

in the name of one Smt. Munnan Devi. She was a co-sharer in the

two plots to the extent of a half share along with her co-tenure

holder, Smt. Ramdei Devi, wife of Ramdas. One Smt. Amrawati

Devi, wife of Late Panna Lal, claimed that Smt. Munnan Devi

had executed a sale deed of her half share in the plots of land

above mentioned on 09.10.1998. Smt. Amrawati Devi got her

name recorded as a co-tenure holder along with Smt. Ramdei

Devi, after mutating out the name of Smt. Munnan Devi in the

revenue records on 11.08.1999. This was done on the basis of the

sale deed dated 09.10.1998. On 08.02.1999, Smt. Munnan Devi

brought a prompt action against Smt. Amrawati Devi, seeking a

declaration that the sale deed dated 09.10.1998 was null and

void, with a prayer that the declaration granted be communicated

to the Sub-Registrar, where the deed had been registered for

recording the declaration. A permanent injunction was also

claimed against Smt. Amrawati Devi to the effect that the

defendant be restrained from interfering with the plaintiff's title

and possession in the suit property or otherwise creating an

obstruction in any manner, and further not to destroy the standing

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crops in the suit property. The aforesaid suit brought by Smt.

Munnan Devi against Smt. Amrawati Devi was numbered on the

file of the Civil Judge (Junior Division) Haveli, Varanasi as

Original Suit No. 154 of 1999. The short case of Smt. Munnan

Devi in the suit was that the impugned conveyance dated

09.10.1998 was not her deed. It had been got executed by Smt.

Amrawati Devi through the agency of an imposter, a woman,

different from Smt. Munnan Devi. The sale deed was, therefore,

impugned as a void document.

3. On 03.07.2000, a written statement was filed by Smt. Amrawati

Devi, contesting the plaintiff's case. It would not be material, for

the purpose of this petition, to enumerate what her defence was.

Smt. Munnan Devi put in a replication on 29.08.2000. On

30.08.2000, the Trial Court struck issues, a total of seven. What

the issues were is also not relevant for the purpose of this

petition. The sole plaintiff, Smt. Munnan Devi, was examined as

P.W.1. She testified in the dock on 11.02.2003 and 17.07.2003.

Pending suit, Smt. Munnan Devi executed two sale deeds - one in

favour of Smt. Jeera Devi, conveying her half share in Plot No.

156, that is to say, the area of 0.298 hectare out of the total of

0.596 hectare; and the other in favour of Ghanshyam Patel,

conveying her half share in Plot No. 40 admeasuring 0.121

hectare out of the total of 0.243 hectare. Both these sale deeds

were executed on 21.05.2011 and admitted to registration by the

Sub-Registrar, Pindra, Varanasi on 23.05.2011. On the 9th of

February, 2013, Smt. Munnan Devi passed away, while the suit

was still pending.

4. On 15.04.2013, Smt. Phulpatti Devi, daughter of Smt. Munnan

Devi, applied to be substituted in place of the sole plaintiff. The

substitution application was granted by the Trial Court on

05.07.2013. Smt. Phulpatti Devi, the substituted plaintiff, seems

to have prosecuted the suit for a period of approximately five

years until 05.04.2018, when she made an application under

Order XXIII Rule 1 of the Code of Civil Procedure, 1908 seeking

to unconditionally withdraw the suit. The aforesaid application is

numbered on the record of the Trial Court as Paper No. 45ग—.

5. Close on heels of the sudden termination of action by Smt.

Phulpatti Devi, Smt. Jeera Devi filed an application bearing

Paper No. 48क under Order XXII Rule 10 of the Code, seeking

leave of the Court to continue the suit.

6. On 22.08.2018, Smt. Jeera Devi filed objections to the

application dated 05.04.2018 made by Smt. Phulpatti Devi,

seeking to withdraw the suit. On the 4th of July, 2018,

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Ghanshyam Patel made an application 54क under Order XXII

Rule 10 of the Code, seeking leave of the Court to continue the

suit. On 13.07.2018, Smt. Jeera Devi and Ghanshyam Patel made

an application, seeking recall of the order granting substitution in

favour of Smt. Phulpatti Devi, but no orders were passed on the

said application by the Trial Court. The Trial Court, by its order

dated 04.09.2018, allowed the applications 48क and 54क made

by Smt. Jeera Devi and Ghanshyam Patel, respectively, seeking

leave to continue the suit and rejected the application 45ग—

made by Smt. Phulpatti, praying for withdrawal of the suit.

7. Smt. Phulpatti Devi preferred Misc. Civil Appeal No. 143 of

2018 to the District Judge of Varanasi under Order XLIII Rule

1(l) of the Code, seeking reversal of the order dated 04.09.2018

passed by the Additional Civil Judge (Junior Division) Court No.

7, Varanasi. The appeal, upon assignment, came up for

determination before the Additional District Judge, Court No. 12,

Varanasi on 04.05.2019, who proceeded to allow the appeal, set

aside the order dated 04.09.2018, rejected the two applications

seeking leave to continue the suit and accepted Smt. Phulpatti

Devi's application to withdraw.

8. Aggrieved by the order dated 04.05.2019, Smt. Jeera Devi and

Ghanshyam Patel have instituted this petition under Article 227

of the Constitution.”

3. Heard Sri Atul Dayal, learned Senior Advocate assisted by Sri Brij

Raj, learned counsel for original petitioners, Sri Triveni Shankar

alongwith Sri Ajay Shankar, learned counsel appearing for respondent

No. 4, Sri J. Nagar, learned Senior Advocate assisted by Sri Shambhu

Nath, learned counsel for original respondent No. 3 and Sri Saurabh

Pandey, Advocate, who has been heard upon intervention granted by

the Court.

4. Sri Atul Dayal would submit, that the issue has been squarely

answered by a two-judge bench decision of the Supreme Court, in

Rajendra Prasad Gupta Vs. Prakash Chandra Mishra & Ors.;

AIR 2011 SC 1137. Therein, it was observed "there is no express bar

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in filing an application for withdrawal of the withdrawal application",

in a suit proceeding.

5. According to him Anurag Mittal Vs. Shaily Mishra Mittal;

(2018) 9 SCC 691 is wholly distinguishable. That decision had arisen

under the provisions of the Hindu Marriage Act, 1955 (hereinafter

referred to as 'HMA') read with Family Courts Act,1984 to which

Order XXII Rule 10 has no application. Even otherwise, on facts, the

said case is distinguishable.

6. Referring to Order XXII Rule 6 of the Code of Civil Procedure,

1908 (hereinafter referred to as the 'Code') read with Section 146 of

the Code, he contends that the rights of an assignee to continue the

suit proceeding cannot be eclipsed or foreclosed by the assignor. Smt.

Raisa Sultana Begam & Ors. Vs. Abdul Qadir & Ors.; AIR 1966

All 318 is described to have lost it’s efficacy on being specifically

overruled by a Special Full Bench in Sunni Central Board of Waqfs

Vs. Sri Gopal Singh Visharad & Ors.; 2010 ADJ 1 (SFB) (LB).

Though that decision of the Special Full Bench itself was reversed by

the Supreme Court, the reasoning given by the Special Full Bench to

overrule Smt. Raisa Sultana Begam (supra), remains.

7. Also, he would submit, "automatic order" is inconsistent to inherent

character of judicial functions of Court - to grant or withhold a

remedy. He has relied on Gamlen Chemical Co. (UK) Ltd. Vs.

Rochem Ltd. & Ors.; (1980) 1 WLR 614.

8. He has also drawn our attention to Sunder Vs. Mohd. Ismail;

2004 (3) ALD 318, a decision of Andhra Pradesh High Court to

submit, a plain reading of Order XXIII Rule 3 does not suggest that

such application is required to be "ordered automatically".

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9. Responding to the above, Sri Triveni Shankar along with Sri Ajay

Shankar, learned counsel for the respondents would submit that the

Supreme Court decision in Rajendra Prasad Gupta (supra) does

not refer to the provisions of Order XXII and Order XXIII of the

Code. The said decision of the Supreme Court is with reference to

powers of the Civil Courts under Section 151 of the Code and not

with reference to Order XXII rule 6 of the Code

10. In contrast, in Anurag Mittal (supra), full consideration has been

made of the statutory and the presidential law. Thereafter, considering

K. S. Bhoopathy Vs. Kokila; (2000) 5 SCC 458, it was observed

that a suit would stand withdrawn on the date of the withdrawal

application being filed as the trial court "has to grant it", without

exception.

11. Relying on earlier, Full Bench (three judge bench) decision of this

Court in Gopal Krishna Indley Vs. 5th Additional District Judge,

Kanpur & Ors.; AIR 1981 All 300, it has been urged, that the later

decision of the Supreme Court in Anurag Mittal (supra) lays down

the law more elaborately. Hence it is good law. Also, relying on yet

another Full Bench (three judge bench) decision of this Court in

Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad & Ors.; AIR

1991 All 114, it has been urged, the later decision of the Supreme

Court is binding.

12. Sri J. Nagar learned Senior Advocate would submit that an act of

withdrawal is an act of retirement from contest. It requires no further

act of the Court to complete that action or its consequence.

13. While such submissions have been advanced, we are required to

answer the question as referred for our consideration by the learned

single judge. In that, an element of uncertainty/conflict of law has

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been noticed between Smt. Raisa Sultana (supra) as dealt with by

the Special Full Bench in Sunni Central Board of Waqfs (supra),

reversed in M. Siddiq (dead) through legal representative (Ram

Janmabhoomi Temple case) Vs. Mahant Suresh Das & Ors.;

(2020) 1 SCC 1 and the decision of the Supreme Court in Anurag

Mittal (supra).

14. Second, the learned single judge has observed uncertainty of law

declared in Meera Rai (supra), in view of Anurag Mittal (supra).

15. Taking the first doubt expressed to Smt. Raisa Sultana Begam

(supra), the precise question referred to a larger bench (of two

judges) in that case, was noted as below:

"Can the plaintiff who has already moved an application under

Sub-rule (1) of Order XXIII, Rule 1, C.P.C. withdraw the

application for the withdrawal of the suit before orders are

passed on the withdrawal application, i.e., the suit is, as far as

the plaintiff is concerned, struck off from the file ?"

16. There, the plaintiff – Gufran, filed an application in a pending suit

proceeding, to withdraw the same. While that application remained

pending, he filed another application to withdraw his withdrawal

application (filed earlier), alleging fraud. Yet, the trial court allowed

his first/withdrawal application. In revision, the above noted issue

was referred to a larger bench.

17. The conflict of opinion between different single judge bench

decisions, was resolved in Raisa Sultana Begum (supra), by a

division bench, on the reasoning that there existed no provision to

confer a right to revoke withdrawal from a suit and that the right to

withdraw from a suit did not include a right to revoke that

withdrawal. Further, the act of withdrawal is complete or effective at

once i.e. on information being conveyed to the court, and no formal

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order is required to effectuate or recognize it. Accordingly, the

question referred to that division bench was answered in the negative.

18. Thus, the earlier view taken in Ram Bharos Lall vs. Gopee

Beebee (1874) 6 NWP 66 was observed to be not a good law - to the

extent it held:

“It is difficult to understand why a plaintiff should have liberty to

withdraw from a suit and not have equal liberty to rescind the act

of withdrawal at any time before final judgment.”

19. Later, the Special Full Bench in Sunni Central Board of Waqfs

(supra) overruled that dictum of Smt. Raisa Sultana Begam

(supra). It was observed:

“1035. Once a suit is duly instituted, the Court would pass order

issuing summons to the defendants to appear and answer the

plaint. Such summons, vide Order V Rule 3, are required to be

signed by the Judge or such officer as he appointed, and also the

seal of the Court. A suit once duly instituted and registered in the

Court would not struck off from the record of the Court on the

mere communication by the plaintiff orally or in writing that he

intends to withdraw unless an order is passed by the Court to the

said effect, which would have the legal consequence of bringing

the proceedings set in motion by instituting the suit, to a halt.

Mere absence of any provision permitting withdrawal of the

application filed by a plaintiff for withdrawing the suit does not

mean that no such power is vested in the plaintiff. So long as an

order is not passed by the Court, if the plaintiff informs the Court

by moving an application that he intends to withdraw the

application for withdrawal of suit, he can always request or

inform the Court that he does not want to press the application

and the same may be dismissed as not pressed or withdrawn. It is

only where the plaintiff press his application before the Court

requiring it to pass the order for withdrawal of the Suit, the Court

would pass the said order in accordance with law since it cannot

compel a plaintiff to pursue a suit though he want to withdraw the

same. It would thus be wholly unjust to hold that once an

application to withdraw the suit is filed by a plaintiff, he cannot

withdraw the same and the suit would stand dismissed as

withdrawn. This would have serious and drastic consequences in

as much as he cannot file a fresh suit on the same cause of action.

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1036. Moreover, the existence of a provision i.e. Rule 1(3),

empowering the Court to consider as to whether the plaintiff

should be saddled with the liability of payment of cost or not also

contemplates that an application for withdrawal of suit by itself

would not result in any consequences whatsoever unless the

Court has applied its mind regarding the cost. If what has been

held in Smt. Raisa Sultana Begam (supra) is taken to be correct,

it would mean that there would be no occasion for the Court to

apply its mind on the question of cost under Rule 1(3) since the

suit would stand dismissed as withdrawn as soon as the plaintiff

informs the Court about his decision for withdrawal of the suit

either orally or in writing. This is nothing but making Rule 3 (1)

redundant. The earlier judgement of this Court in Raja

Shumsher Bahadoor Vs. Mirja Mahomed Ali (1867) Agra

H.C.R. 158 wherein this view was taken that the withdrawal must

be regarded as terminating automatically the proceedings in the

suit involving the suit's immediate dismissal was not found to be

correct subsequently by the Division Bench in Ram Bharos Lall.

We, therefore, find it appropriate in the entire facts and

circumstances to take a different view and have no hesitation in

holding though with great respect to the Bench, that the law laid

down in Smt. Raisa Sultana Begam (supra) is not correct. In our

view, the law laid down in Ram Bharos Lall (supra),

Mukkammal Vs. Kalimuthu Pillay (supra), Raj Kumari Devi

Vs. Nirtya Kali Debi (supra) and Yeshwant Govardhan Vs.

Totaram (supra) lay down the correct law. We also find that a

Division Bench of Orissa High Court in Prema Chanda Barik

Vs. Prafulla Kumar Mohanty AIR 1988 Orissa 33 has also taken

the same view and did not find itself agreeable with the Division

Bench decision in Smt. Raisa Sultana Begam (supra). In fact, a

Division Bench of Calcutta High Court in Rameswar Sarkar Vs.

State of West Bengal and others AIR 1986 Cal. 19 has gone

slightly further by observing that where there is no provision

under the Code providing for withdrawal of application for

withdrawal of suit, Section 151 C.P.C. would apply.”

(emphasis supplied)

20. However, it is equally true that the said decision of the Special

Full Bench has itself been reversed by the Supreme Court in M.

Siddiq (supra).

21. Therefore, if there existed no other binding precedent, it may have

been said that Smt. Raisa Sultana Begam (supra), is good law. To

the extent, Meera Rai (supra) is a decision of the bench presided by

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a learned single judge, it may not prevail over Smt. Raisa Sultana

Begam (supra), a decision rendered by a division bench.

22. Yet, to complete our discussion, it may further be noted, that there

exists yet another earlier division bench decision of this Court in

Kanhaya Lal and Others vs. Partab Chand (1931) 29 ALJ 232

authored by Sulaiman, J, one of the most distinguished jurists

produced by this Court. In that case, an application was filed under

Order XXIII Rule 1 of the Code, to withdraw the appeal filed by the

defendants in the suit. It was opposed by the respondents. They filed

an application against grant of permission to withdraw. However, they

had not filed any cross-objection to the appeal. It was opined that the

appellant did not have an absolute right to withdraw the suit, to

nullify the decree (in that case). Yet, on the interpretation of Order

XXIII Rule 1 sub-rule (1) and sub-rule (2), the learned jurist opined

as below:

“Reading these two provisions of law together it seems to us that

an appellant has the right to withdraw his appeal

unconditionally, his only liability being to pay costs.”

23. The said bench also noted with approval the ratio of a still earlier

decision of the Court in Kalyan Singh vs. Rahmu, I.L.R. (1901) 23

All. 130 wherein it was held that appellant had absolute right to

withdraw his appeal, at any time before judgment, and in substance,

application filed to that effect is not an application for permission to

withdraw the appeal but an intimation of withdrawal. Thereafter that

appeal was declared withdrawn, however with costs awarded to the

respondents.

24. Coming to Rajendra Prasad Gupta (supra), it is a decision of

the Supreme Court. We may first note, that matter travelled to the

Supreme Court from this Court, in Prakash Chandra Mishra and

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Others vs. Rajendra Prasad Gupta and Others, 2004 (55) ALR

282. There, the plaintiffs Rajendra Prasad Gupta and Others had

instituted an injunction suit. In that an application for temporary

injunction was also filed. It was granted. Thereafter, on 12.12.1997,

the plaintiffs moved an application to withdraw the suit before any of

the defendants had entered appearance. The Court fixed the date

07.01.1998, on that application, it being the date fixed (earlier) for

appearance of the defendants. Before any further order could be

passed, the plaintiffs filed a further application to withdraw the earlier

application filed by them - to withdraw the suit proceeding. It was

rejected. The trial court opined that the withdrawal application was

filed under Order XXIII Rule 1 of the Code. Therefore, no specific

order was required to be passed on that application to cause the effect

of withdrawal of the suit. It relied on the division bench decision of

this Court in Smt. Raisa Sultana Begam (supra). In appeal, the said

order was set aside by the first appeal court, and the matter was

remitted to the trial court for disposal of the dispute on merit. In a

First Appeal From Order filed before this Court, the learned single

judge allowed the defendants’ appeal following Smt. Raisa Sultana

Begam (supra). For ready reference, the facts noted in Prakash

Chandra Mishra (supra) by the learned single judge are as below:

“2. The trial court was of the opinion that the application for

withdrawal of the suit was under Order XXIII, Rule 1 of the Code

of Civil Procedure. No specific order for withdrawal of the suit

was required. Therefore, for all practical purposes the suit stands

withdrawn. In that view of the matter the application to withdraw

the application for withdrawal of the suit is not maintainable.

Reliance was placed upon a Division Bench judgment of this

Court. By order dated 18.9.1998 application No. 14-Ka was

rejected and the suit was treated to have been dismissed. This

order has been set aside by the Court below in Civil Appeal No.

262 of 1998 by its judgment and order dated 5.5.2003. The matter

has been remanded to the Court below for disposal of the dispute

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on merit. Aggrieved by this order the defendants have come up

before this Court in present appeal.”

25. Thus, the defendants First Appeal From Order was allowed with

the following observation:

“7. In view of the above ruling it is clear that the present one is

the case of abandonment of the suit and it was complete as soon

as application was filed. There is no allegation of any fraud or

collusion etc. In this view of the matter order of the Court below

cannot be sustained. Thus, the first point raised by the respondent

has no merit.”

26. That matter was carried to the Supreme Court by the plaintiff’s

side in Rajendra Prasad Gupta (supra). Therein it was observed as

below:

“3. The High Court was of the view that once the application for

withdrawal of the suit is filed the suit stands dismissed as

withdrawn even without any order on the withdrawal application.

Hence, the second application was not maintainable.

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.”

27. Thus, it would be erroneous to assume that in Rajendra Prasad

Gupta (supra) the application to withdraw the suit had been filed

under Section151 of the Code. On the contrary, from the perusal of

the order of this Court [i.e. in Prakash Chandra Mishra (supra)] the

contrary is true. The application to withdraw the suit proceeding was

filed under Order XXIII Rule 1 of the Code, and not Section 151 of

the Code. In fact, the further application to withdraw the application

to withdraw the suit is referable to section 151 of the Code.

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28. Therefore, brief as it may be, by virtue of Article 141 of the

Constitution of India, the declaration of the law made by the Supreme

Court in Rajendra Prasad Gupta (supra) cannot be avoided by this

Court. To that extent, this Court may remain bound to apply that law

declared by the Supreme Court and it may not attempt to interpret the

same. In Fuzlunbi vs. K. Khader Vali (1980) 4 SCC 125, the

Supreme Court through the eloquence of Justice V.R. Krishna Iyer

observed as below:

“7. We need not labour the point because this Court has already

interpreted Section 127(3)(b) in Bai Tahira [(1979) 2 SCC 316 :

1979 SCC (Cri) 473] and no Judge in India, except a larger

Bench of the Supreme Court without a departure from judicial

discipline can whittle down, wish away or be unbound by the

ratio thereof. The language used is unmistakable, the logic at

play is irresistible, the conclusion reached is inescapable, the

application of the law as expounded there is an easy task. And

yet, the Division Bench, if we may with respect say so, has, by the

fine art of skirting the real reasoning laid down “unlaw” in the

face of the law in Bai Tahira [(1979) 2 SCC 316 : 1979 SCC

(Cri) 473] which is hardly a service and surely a mischief,

unintended by the Court maybe, but embarrassing to the

subordinate judiciary.”

29. Thus, it appears that the ratio in Raisa Sultana Begam (supra)

lost its binding force in view of the contrary ratio emerging from

Rajendra Prasad Gupta (supra), by own force of Article 141 of the

Constitution of India. Hence, we must consider the other aspect of the

reference made by the learned single judge contained in the later part

of question number (i) and question number (ii), as referred, i.e.

whether the later decision of the Supreme Court in Anurag Mittal

(supra) runs contrary to the reasoning of the Supreme Court in

Rajendra Prasad Gupta (supra). Only if it is so, the next question

may arise whether ratio of Anurag Mittal (supra) overrides

Rajendra Prasad Gupta (supra), on the strength of the further

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reasoning that a more reasoned and later decision of the Supreme

Court may be binding.

30. In Anurag Mittal (supra), the marriage between Anurag Mittal

and his first wife was dissolved at the instance of the first wife-spouse

of Anurag Mittal, by the judgement and decree of the trial court dated

31.08.2009. Simultaneously, another suit for restitution of conjugal

rights brought by the husband-spouse Anurag Mittal, against his first

wife, was dismissed. Upon appeals filed by the husband-spouse

thereagainst, the High Court stayed the decree of divorce vide order

dated 20.11.2009. Pending such appeals, those parties reached a

settlement on 15.10.2011. Thereunder, the husband spouse Anurag

Mittal undertook to withdraw his appeals (pending before the High

Court), within 30 days. He filed such application. On 28.11.2011, his

statement was recorded before the Registrar of the High Court -

confirming the settlement reached between the parties. Consequently,

the appeals were dismissed as withdrawn in terms of that settlement,

vide order dated 20.12.2011.

31. Meanwhile, the husband-spouse i.e. Anurag Mittal remarried on

06.12.201. Unfortunately, his second marriage also suffered

matrimonial discord. In that circumstance, his second wife i.e. Shaily

Mishra Mittal sought a declaration that her marriage was void under

Section 5(1) read with Section 11 of the HMA. According to her, on

the date of her marriage 06.12.2011, Anurag Mittal was married to his

first wife. The suit filed by Shaily Mishra Mittal was dismissed by the

Family Court. That order was set aside by the High Court.

32. In such facts an issue arose before the Supreme Court, whether the

dismissal of appeal filed by the husband-spouse “relates back” to the

date of filing of the application for withdrawal. The Supreme Court

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noticed the provisions of Order XXIII Rule 1 of the Code as also its

earlier decision in Kokila (supra) and thereafter observed as below:

“16. The question for consideration in the present case is whether

the High Court has exercised the discretion vested under Order

XXIII Rule 1(3) CPC on consideration of matters relevant for

exercise of such power. On perusal of the impugned order it is

clear to us that the learned Judge has not considered the matter

in its proper perspective while allowing the prayer of the plaintiff

for permission to withdraw the suit with leave to file a fresh suit.

The order is vitiated on account of non-application of mind to the

relevant aspects of the matter. This position is clear from some

observations in the impugned order which are extracted

hereinbelow:

“But, one fact-situation has to be remembered in this

case, viz., that it was the appellants who succeeded in

the trial court in obtaining a decree and in the appeal

against such decree by the respondents, which was

partly allowed, the appellate court found that the

pathway was common to both the parties, but the right

was not gone into, title was not determined, in such a

situation withdrawal of the suit at the appellate stage

although it may amount to withdrawal or nullification

of the appellate court's order, still did not hurt any party

other than the withdrawing plaintiffs, because they are

also having the right to use the common pathway and

the decree preventing installation of the machinery is

nullified. Therefore, the contention that withdrawal will

prejudice the respondents, has no basis. The

apprehended prejudice can be safeguarded by keeping

the right to use the pathway by both the parties till the

disposal of the suit.

… In view of this settled position, it is appropriate to

permit withdrawal of the suit with a liberty to file a

fresh suit for declaration of title which they ought to

have done at the initial stage. By withdrawal, the

respondents should not be deprived of the benefit of

usage of that passage till the final adjudication. If there

are valid defences, they can raise all such defences.”

17. From the above it appears that the approach of the High

Court was that the plaintiff should have prayed for declaration of

title which they had omitted to include in the plaint. It was for the

plaintiffs to frame their suit in any form as advised. If they felt

that there was a cause of action for declaration of their title to the

suit property they could have made a prayer in that regard. If

they felt that a declaration of their right to exclusive user of the

pathway was necessary they should have framed the suit

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accordingly. On the other hand the plaintiffs merely sought a

decree of injunction permanently restraining the defendants from

disturbing their right of user of the property. From the facts and

circumstances of the case as emanating from the judgments of the

trial court and the first appellate court it is clear that the

plaintiffs realised the weakness in the claim of exclusive right of

user over the property and in order to get over the findings

against them by the first appellate court they took recourse to

Order XXIII Rule 1(3) CPC and filed the application for

withdrawal of the suit with leave to file a fresh suit. The High

Court does not appear to have considered the relevant aspects of

the matter. Its approach appears to have been that since the

interest of the defendants can be safeguarded by giving them

permission for user of the pathway till adjudication of the

controversy in the fresh suit to be filed, permission for withdrawal

of the suit as prayed for can be granted. Such an approach is

clearly erroneous. It is the duty of the court to feel satisfied that

there exist proper grounds/reasons for granting permission for

withdrawal of the suit with leave to file fresh suit by the plaintiffs

and in such a matter the statutory mandate is not complied with

by merely stating that grant of permission will not prejudice the

defendants. In case such permission is granted at the appellate or

second appellate stage prejudice to the defendant is writ large as

he loses the benefit of the decision in his favour in the lower

court.

18. Order 23 Rule 1(1) CPC enables the plaintiff to abandon his

suit or abandon a part of his claim against all or any of the

defendants. Order 23 Rule 1(3) CPC requires the satisfaction of

the Court for withdrawal of the suit by the plaintiff in case he is

seeking liberty to institute a fresh suit. While observing that the

word abandonment in Order 23 Rule 1(1) CPC is “absolute

withdrawal” which is different from the withdrawal after taking

permission of the court, this Court held as follows [K.S.

Bhoopathy v. Kokila, (2000) 5 SCC 458] : (Kokila case [K.S.

Bhoopathy v. Kokila, (2000) 5 SCC 458] , SCC pp. 463-64, para

12)

“12. The law as to withdrawal of suits as enacted

in the present Rule may be generally stated in two

parts:

(a) a plaintiff can abandon a suit or

abandon a part of his claim as a matter

of right without the permission of the

court; in that case he will be precluded

from suing again on the same cause of

action. Neither can the plaintiff abandon

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a suit or a part of the suit reserving to

himself a right to bring a fresh suit, nor

can the defendant insist that the plaintiff

must be compelled to proceed with the

suit; and

(b) a plaintiff may, in the circumstances

mentioned in sub-rule (3), be permitted

by the court to withdraw from a suit with

liberty to sue afresh on the same cause

of action. Such liberty being granted by

the court enables the plaintiff to avoid

the bar in Order 2 Rule 2 and Section 11

CPC.”

19. Order 23 Rule 1(1) CPC gives an absolute right to the

plaintiff to withdraw his suit or abandon any part of his claim.

There is no doubt that Order 23 Rule 1 CPC is applicable to

appeals as well and the appellant has the right to withdraw his

appeal unconditionally and if he makes such an application to the

Court, it has to grant it. [Bijayananda Patnaik v. Satrughna Sahu,

(1964) 2 SCR 538 at p. 550 : AIR 1963 SC 1566, p. 1571, para 7]

Therefore, the appeal is deemed to have been withdrawn on 28-

11-2011 i.e. the date of the filing of the application for

withdrawal. On 6-12-2011 which is the date of the marriage

between the appellant and the respondent, Ms Rachna Aggarwal

cannot be considered as a living spouse. Hence, Section 5(i) is

not attracted and the marriage between the appellant and the

respondent cannot be declared as void.”

33. The Supreme Court considered the effect in law caused by the

mandatory provisions of Section 15 of the HMA - to the extent it

provides a statutory injunction against another marriage being

solemnized by the party seeking divorce, during the pendency of a

regular appeal against that decree of divorce. The purpose of that

provision was read, to avert complications and to protect the

matrimonial rights of the spouse contesting a decree of divorce.

However, since settlement had been reached by Anurag Mittal with

his first wife-spouse and therefore, he wanted to withdraw from

contest against the decree of divorce pertaining to that marriage, and

since he had made an application to withdraw that appeal, it was held

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- he was not required to wait (to re-marry), till formal order came to

be passed on his appeal. That purposive construction was offered to

the provisions of Section 15 of the HMA, a social welfare and

beneficial legislation - to advance its object of social reform.

34. As to law considered by the Supreme Court in Anurag Mittal

(supra), Shiv Prasad vs. Durga Prasad and Others (1975) 1 SCC

405 arose from Order XXI Rule 90 of the Code. Clearly it has no

bearing on the issue engaging our attention. Then, Anil Dinmani

Shankar Joshi and another vs. Chief Officer, Panvel Municipal

Council, Panvel and another, 2003 SCC OnLine Bom 24 is a

decision of the Bombay High Court. It recognized the ‘right’ of a

plaintiff to withdraw his suit. However, that ‘right’ may remain

independent of costs that may be imposed by the Court on such

plaintiff.

35. In Kokila (supra), the Supreme Court noted the difference

between Order XXIII Rule 1 sub-rule (1) and sub-rule (3). It

recognized the ‘discretion of the Court’ in exercise of that power. It

thus observed as below:

“13. The provision in Order XXIII Rule 1 CPC is an exception to

the common law principle of non-suit. Therefore on principle an

application by a plaintiff under sub-rule (3) cannot be treated on

a par with an application by him in exercise of the absolute

liberty given to him under sub-rule (1). In the former it is actually

a prayer for concession from the court after satisfying the court

regarding existence of the circumstances justifying the grant of

such concession. No doubt, the grant of leave envisaged in sub-

rule (3) of Rule 1 is at the discretion of the court but such

discretion is to be exercised by the court with caution and

circumspection. The legislative policy in the matter of exercise of

discretion is clear from the provisions of sub-rule (3) in which

two alternatives are provided; first where the court is satisfied

that a suit must fail by reason of some formal defect, and the

other where the court is satisfied 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. Clause (b) of sub-rule (3)

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contains the mandate to the court that it must be satisfied about

the sufficiency of the grounds for allowing the plaintiff to institute

a fresh suit for the same claim or part of the claim on the same

cause of action. The court is to discharge the duty mandated

under the provision of the Code on taking into consideration all

relevant aspects of the matter including the desirability of

permitting the party to start a fresh round of litigation on the

same cause of action. This becomes all the more important in a

case where the application under Order XXIII Rule 1 is filed by

the plaintiff at the stage of appeal. Grant of leave in such a case

would result in the unsuccessful plaintiff to avoid the decree or

decrees against him and seek a fresh adjudication of the

controversy on a clean slate. It may also result in the contesting

defendant losing the advantage of adjudication of the dispute by

the court or courts below. Grant of permission for withdrawal of

a suit with leave to file a fresh suit may also result in annulment

of a right vested in the defendant or even a third party. The

appellate/second appellate court should apply its mind to the

case with a view to ensure strict compliance with the conditions

prescribed in Order XXIII Rule 1(3) CPC for exercise of the

discretionary power in permitting the withdrawal of the suit with

leave to file a fresh suit on the same cause of action. Yet another

reason in support of this view is that withdrawal of a suit at the

appellate/second appellate stage results in wastage of public time

of courts which is of considerable importance in the present time

in view of large accumulation of cases in lower courts and

inordinate delay in disposal of the cases.”

(emphasis supplied)

36. Then, Bijayananda Patnaik Vs. Satrughna Sahu; 1963 SCC

OnLine SC 231 was a case arising on an election petition. It did not

consider the scope of Order XXIII Rule 1. In that, it also noted the

earlier decisions of this court in Kalyan Singh (supra) and Kanhaya

Lal (supra). At the same time, in the facts of that case, it was

recognized that in absence of any permission sought to file a suit etc.,

the plaintiff would have “absolute power" to withdraw his suit or a

part of his claim.

37. Thus, we are unable to accept the submission as correct - that the

ratio of Anurag Mittal (supra) is contrary to Rajendra Prasad

Gupta (supra). Both decisions operate in different fields of law. In

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the first place, Rajendra Prasad Gupta (supra) is law laid down by

the Supreme Court with reference to Order XXIII Rule 1 of the Code,

applicable to suit proceedings whereas the ratio of Anurag Mittal

(supra) applies to cases arising under the HMA, to which the Code

does not apply, per-se. Precisely, it deals with an interpretation and

effect of Section 15 of the HMA.

38. Second, the question involved was confined to the legal issue

whether the order of withdrawal of an appeal filed under the Family

Courts Act, 1984 ‘relates back’ to the date of filing of the application.

As noted above, the application to withdraw the appeal was filed by

the husband spouse on the strength of a settlement reached between

the parties. It was confirmed before the Registrar of the Delhi High

Court. Thereafter, the husband spouse, solemnized second marriage.

Later, his appeal against the decree of divorce was dismissed as

withdrawn by the order of the Delhi High Court. That order was

found to relate back to the date of application filed to withdraw to the

extent that the settlement had been reached, and it had led the

husband spouse to file an application to withdraw his appeal against

the decree of divorce. Thus, the protection granted to him under

section 15 of the HMA was found to have been lifted, at the own

instance of the appellant.

39. Before we conclude, we may also note that interpretation of Order

XXIII Rule 1 of the Code has also engaged the attention of different

High Courts. A division bench of the Bombay High Court in

Yeshwant Govardhan Vs. Totaram Avasu, AIR 1958 Bombay 28,

observed as below:

"8. … and so long as the Court has not made an order showing

that the withdrawal has become complete or effective, there is

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always a locus poenitentiae for the plaintiff to withdraw his

withdrawal."

40. In Thomas George Vs. Skariah Joseph & Anr.; AIR 1973

Kerala 140, the Kerala High Court disagreed with the view taken by

the division bench of this Court in Raisa Sultan Begum (supra); and

Amalgamated Electricity Co. Ltd. Vs. Kutubuddin; AIR 1970

Mys 155. In that, learned single judge of the Kerala High Court

observed as below:

"4. ... It appears to me that though no order on an application for

withdrawal under Order 23. Rule 1(1) is called for nevertheless

withdrawal be comes irrevocable only when the Court has

occasion to exercise its mind on the factum of withdrawal brought

to its notice. After that moment, it is not open to the party to back

out of it. Until that is brought to its notice, the withdrawal has not

been acted upon. .."

41. Then, a division bench of the Calcutta High Court in Rameswar

Sarkar Vs. State of West Bengal; AIR 1986 Calcutta 19 also had

the occasion to consider the aforesaid issue. It disagreed with the

division bench decision of this Court in Raisa Sultan Begum

(supra). Referring to Section 151 of the Code, the Calcutta High

Court found that the said provision would allow for withdrawal of an

application seeking to withdraw a suit. It thus observed:

"14. The scope of S. 151 is very wide. Where there is no provision

under the Code of Civil Procedure prescribing any remedy, S. 151

will apply. O. 23, R. 1 provides withdrawal of a suit with or

without liberty to file a fresh suit. There is no provision for

getting an order passed on withdrawal application set aside or

praying for withdrawal of an application for withdrawal of the

suit. In such circumstances, in our opinion, the Court is not

powerless to allow withdrawal of an application for withdrawal

of a suit in exercise of its inherent power in a proper and suitable

case. ..."

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42. Last, the Rajasthan High Court in Thakur Pehp Singh Vs.

Thakur Prathvi Singh & Ors.; AIR 2011 Rajasthan 22 also opined

that the plaintiff would have right to withdraw his withdrawal

application so long as the Court may not have made any order

thereon.

43. Interestingly, it is the view taken by the Calcutta High Court that

resonates in the decision of the Supreme Court in Rajendra Prasad

Gupta (supra), to the extent the Supreme Court has reasoned that the

plaintiff would remain empowered to withdraw his application filed to

withdraw a suit, till any order is passed on such withdrawal

application. By virtue of section 151 of the Code, any plaintiff who

may have filed an application to withdraw a suit proceeding may

remain empowered to withdraw that application itself, before any

order is passed on the application to withdraw the suit.

44. Thus, to the doubt expressed by the learned single judge, we

respond: The decision in Meera Rai (supra) is good law as its

reasoning is protected and preserved under the ratio of the decision of

the Supreme Court in Rajendra Prasad Gupta (supra). The decision

of the Supreme Court in Anurag Mittal (supra) is wholly

distinguishable, being applicable to the interpretation and

determination of the scope of section 15 HMA.

45. Thus, the two decisions of the Supreme Court in Rajendra

Prasad Gupta (supra) and Anurag Mittal (supra) operate in

different fields. In so far as the division bench decision in Smt. Raisa

Sultana Begam (supra) is concerned, it is no longer a good law in

view of the law pronounced by the Supreme Court in Rajendra

Prasad Gupta (supra).

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46. We also observe that the view taken in Meera Rai (supra) is

consistent to the view taken by the Bombay, Kerala, Calcutta and

Rajasthan High Courts in - Yeshwant Govardhan (supra), Thomas

George (supra), Rameswar Sarkar (supra) and Thakur Pehp

Singh (supra), respectively.

47. Before we part, first, we may observe in brief - Order XXIII Rule

1 creates a ‘right’, sometimes described as ‘power’ on the plaintiff to

withdraw from a suit proceeding, instituted by them. That right is

absolute and one that may not require any further action on part of the

Court, to fructify. Yet, that ‘right’ or ‘power’ is not in derogation,

either to Section 151 of the Code which vests on the same plaintiff a

right to seek withdrawal of his application to withdraw from a suit -

before the Court grants its imprimatur and thus renders itself functus

officio. That little window of time exists.

48. In that, to read the withdrawal of a suit proceedings as complete

immediately or forthwith - upon communication of the intent (by the

plaintiff), to withdraw from a suit proceeding, besides needlessly

defeating Section 151 of the Code, would also militate against the

other discretionary powers of the trial court - whether with respect to

award of cost or to allow a party to be transposed as a plaintiff or to

allow an assignee to continue the suit.

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.

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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 Rai (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.

52. The reference is answered accordingly. Let the record be placed

before regular bench.

(Ajay Bhanot,J.) (Rajeev Misra,J.) (Saumitra Dayal Singh,J.)

January 19, 2026

Faraz/Prakhar/Abhilash