Kasturi Rajan & Ors. vs Vatsala Vescio & Ors.

The present petition under Article 227 of the Constitution of India read with Section 151 of the code of Civil Procedure, 1908^{11.Hereinafter “CPC”} assails the order dated 17.09.2024 passed by the learned Additional District Judge-04, Patiala House Courts, New Delhi^{22.Hereinafter “Trial Court”}, in CS No. 59209/2016^{33.Hereinafter “underlying suit”}, 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.

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 bearing no. C-21, Anand Niketan, New Delhi-110021^{44.Hereinafter “suit property”}.

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.

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.

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, 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.

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.

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:

Aggrieved thereby, the petitioners have approached this Court.

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 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 is placed on M.C. Mehta v. Union of India and Ors.^{55.2018 INSC 804}.

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. Reliance is placed on Anurag Mittal v. Shaily Mishra Mittal^{66.(2018) 9 SCC 691} 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.

Further reliance is placed on Raisa Sultana Begam and Ors. v. Abdul Qadir and Ors.,^{77.1965 SCC OnLine All 380} 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.

In the same context, reliance is placed on Vimal Jain and Ors. v. Govt. of NCT(Delhi) and Ors^{88.2018 SCC OnLine Del 13650}., whereby this Court while referring to the decisions of the Hon’ble Supreme Court in Shiv Prasad v. Durga Prasad and Anr..^{99.(1975) 1 SCC 405}, and the Hon’ble Bombay High Court in Anil Dinmani Shankar Joshi and Ors. v. Chief Officer, Panvel Municipal Council and Ors.^{1010.2003 SCC OnLine Bom 24}, observed that the act of withdrawal is complete as soon as the applicant files his application as Order XXIII 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.

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.

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.

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. Prakash Chandra Mishra^{1111.(2011) 2 SCC 705}, 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:

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, Varanasi and 2 others^{1212.A227 No. - 4747 of 2019, Allahabad High Court}, 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:

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 petition is causing grave hardship to respondent no. 1, who is a super-senior citizen of 83 years.

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.

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.

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. v. Regency Convention Centre & Hotels (P) Ltd. & Ors.^{1313.(2010) SCC 417}, 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 on Mohinder Jeet Singh v. BMW (India) (P) Ltd.^{1414.2019 SCC OnLine Del 9892}, whereby this Court held as follows:

In rebuttal, learned counsel for the petitioner contends that the decision in Rajendra Prasad Gupta (supra), relied upon by respondent no. 1, is per incuriam, as it does not take note of the decision in Shiv Prasad (supra).

Heard rival contentions and perused the record.

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.

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 Court. In Shalini Shyam Shetty v. Rajendra Shankar Patil^{1515.(2010) 8 SCC 329}, 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.

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.

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.

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.

The Hon’ble Supreme Court in Nak Engineering Company Pvt. Ltd. v. Tarun Keshrichand Shah & Ors.^{1616.(2026) 3 SCC 631}, 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.

In Mohinder Jeet Singh (supra), this Court reiterated the same principle and held:

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 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:

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, namely, deletion of respondent nos. 2 and 3, with the non-pressing of relief (ii) stated in that context.

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.

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:

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.

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.

In Rajendra Prasad Gupta (supra), the Hon’ble Supreme Court considered whether an application seeking withdrawal of an earlier 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:

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.

The petitioners, while relying on State of Assam v. Ripa Sarma^{1717.(2013) 3 SCC 63}, 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.

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.

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 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.

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.

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.

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.

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 and shall not be construed as an expression of opinion on the merits of the underlying suit.

Pending application(s), if any, stands disposed of.

The judgment be uploaded on the website forthwith.