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Judgment
Heard Sri Manish Tandon, learned counsel for the petitioners and Sri Prakhar Tandon, learned counsel appearing for respondent nos. 1/1 to 1/3 and perused the record.
The present petition challenges the judgment and order dated 17.12.2021 passed by the learned Additional District Judge, Court No. 16, Kanpur Nagar, in Rent Appeal No. 50 of 2013, M/s Damodar Das Gopal Das and others v. Rajendra Kumar Agrawal and others, whereby the appeal preferred by the petitioners was dismissed and the order dated 28.02.2013 passed by the Prescribed Authority in Rent Case No. 14 of 2000, Rajendra Kumar Agrawal and another v. Damodar Das Gopal Das and others, was affirmed. Although the petition was instituted under Article 226 of the Constitution of India, learned counsel for the petitioners has submitted that the matter may be considered in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution.
By the order dated 28.02.2013, the Prescribed Authority allowed the release application instituted by the respondent-landlords under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The petitioners challenged the said order by filing a statutory appeal under Section 22 of the Act, which was dismissed by the judgment and order dated 17.12.2021.
During the pendency of the present petition, this Court, by an interim order dated 25.04.2022, stayed the operation and implementation of the orders under challenge.
The petitioners have now filed Civil Misc. Withdrawal Application No. 3 of 2026, supported by an affidavit, seeking permission to withdraw the present petition. The application refers to a family settlement/Memorandum of Understanding stated to have been arrived at amongst the members of the family of late Jai Narayan Agrawal, pursuant to which, according to the petitioners, the properties were divided amongst the respective branches of the family.
It is further stated in the withdrawal application that, during the pendency of the present petition, the petitioners’ firm, through petitioner nos. 1/1 and 1/2, surrendered possession of the tenanted premises to Sri Narendra Kumar Agrawal on 07.04.2026, allegedly with the consent of Sri Sanjeev Agrawal and Sri Manish Agrawal. On this basis, the petitioners contend that no cause survives for continuation of the present proceedings and that they no longer wish to pursue the challenge to the orders under consideration.
The withdrawal application has been opposed by the respondents. Learned counsel appearing for them submits that the petitioners have not paid rent since 01.09.2023. It is further submitted that the release order passed by the Prescribed Authority was affirmed in statutory appeal and that rights in respect of release and possession have consequently accrued in favour of the respondents.
The respondents dispute the alleged surrender of possession to Sri Narendra Kumar Agrawal. According to them, he is neither a co-owner nor a co-landlord and was not a party to the original release proceedings. The possession memo dated 07.04.2026 is also disputed. The respondents contend that the petitioners continue to remain in possession and have raised the plea of surrender to avoid the consequences of the orders passed against them and their liability in respect of rent and possession.
On these grounds, the respondents oppose the withdrawal application or, in the alternative, seek a direction requiring the petitioners to clear the alleged arrears of rent and to continue paying rent until possession is delivered to the persons legally entitled to receive it.
The objections raised by the respondents bring into focus the question whether a party which has invoked the supervisory jurisdiction of this Court to challenge an adjudication may discontinue that challenge when it no longer wishes to pursue it, and whether such withdrawal may be refused or made conditional on the ground that the opposite party has acquired rights under the adjudication which might otherwise be defeated or prejudiced.
The principles governing withdrawal of proceedings have been considered by the Supreme Court principally in the context of Order XXIII Rule 1 of the Code of Civil Procedure, 1908. Although the provisions of the Code do not, in their strict terms, govern proceedings under Articles 226 and 227 of the Constitution, the principles underlying the said provision are relevant in considering the withdrawal of proceedings invoking constitutional jurisdiction. Their application, however, must be informed by the nature of the proceeding sought to be withdrawn and the rights, if any, which have accrued to the opposite party.
In Hulas Rai Baij Nath v. Firm K.B. Bass & Co.1, the Supreme Court considered the right of a plaintiff to withdraw a suit and recognised the distinction between an unconditional withdrawal and withdrawal accompanied by a request for liberty to institute a fresh proceeding. The decision supports the general principle that a litigant is ordinarily not to be compelled to continue a proceeding which he or she no longer wishes to prosecute. A different consideration may arise, however, where the proposed withdrawal would defeat a right of the opposite party which has independently accrued or which the law protects against being defeated by withdrawal.
In K.S. Bhoopathy and others v. Kokila and others2, the Supreme Court examined the scheme of Order XXIII Rule 1 and distinguished between abandonment or unconditional withdrawal of an existing proceeding and withdrawal accompanied by liberty to institute a fresh proceeding. The decision underscores that the right to discontinue a proceeding and the right to reserve a further remedy on the same cause of action are distinct. A request for liberty to institute a fresh proceeding attracts the judicial discretion of the Court and requires consideration of the circumstances of the case, including the prejudice that may be caused to the opposite party.
The limits on withdrawal where rights have already accrued to the opposite party were considered in R. Rathinavel Chettiar and another v. V. Sivaraman and others3. The principle recognised in that decision is that the power to permit withdrawal cannot be exercised so as to defeat or destroy a right which has accrued to the opposite party as a result of an adjudication or by reason of the stage which the litigation has reached. The right to withdraw, therefore, cannot be treated as an unqualified power to undo a legal consequence which has already accrued in favour of the other side.
The principle in Rathinavel Chettiar does not, however, confer upon the opposite party a general right to compel continuation of every proceeding which the initiating party seeks to withdraw. The material distinction is between a mere desire that the controversy be adjudicated on merits and a situation in which withdrawal would have the legal effect of depriving the opposite party of an accrued right. In the former situation, the desire for an adjudication on merits does not, by itself, justify refusal of withdrawal. In the latter, the Court must ensure that withdrawal is not permitted to defeat the right which has accrued.
This distinction assumes particular significance where the proceeding sought to be withdrawn is an appeal, revision or petition invoking the supervisory jurisdiction of a superior court against an order already passed by a competent court or statutory authority. Such a proceeding is directed against an existing adjudication; it is not itself the original adjudication. Discontinuance of the challenge before the superior forum does not, by itself, withdraw, recall, cancel, modify or nullify the order under challenge. Where that order has conferred a right or benefit upon the opposite party, withdrawal of the challenge ordinarily leaves the adjudication and the rights flowing from it undisturbed, unless the order is otherwise displaced in accordance with law.
The position in respect of withdrawal of writ petitions was specifically considered by the Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior4. The Supreme Court held that the principle underlying Order XXIII Rule 1 should, on grounds of public policy, apply to the withdrawal of a writ petition so as to prevent a litigant from withdrawing one writ petition and thereafter instituting another on the same cause of action without obtaining liberty of the Court. The rule is directed against repeated invocation of constitutional jurisdiction and does not convert withdrawal into an adjudication on the merits of the cause.
The principles emerging from the aforesaid decisions may be summarised as follows:
A party may ordinarily discontinue an unconditional challenge which it no longer wishes to pursue, and the opposite party’s desire for an adjudication on merits does not, by itself, justify compelling continuation of the proceedings.
The right to withdraw a proceeding cannot be exercised so as to defeat or destroy a right which has already accrued to the opposite party as a result of an adjudication or by operation of law.
Where the proceeding sought to be withdrawn is directed against an existing adjudication, withdrawal of the challenge does not, by itself, nullify that adjudication or the rights flowing from it.
While considering an application for withdrawal, the Court must ensure that no accrued right of the opposite party is defeated, without undertaking an unnecessary adjudication of disputed questions which are not required to be determined for deciding the withdrawal application.
An unconditional withdrawal of a petition under Article 226 or Article 227 of the Constitution, without seeking or obtaining liberty to institute fresh proceedings, ordinarily precludes the petitioner, on grounds of public policy, from instituting a fresh petition to re-agitate the same cause of action. Such withdrawal brings the pending proceedings to an end without adjudication on the merits and does not confer upon the petitioner a right to reopen the same challenge through a fresh petition. The bar operates in relation to the same cause of action and does not, by itself, extinguish independent rights or remedies arising from a subsequent and distinct cause of action, subject to law
The aforesaid principles may now be applied to the facts of the present case. The respondent-landlords instituted the release proceedings and obtained the order dated 28.02.2013. The statutory appeal preferred by the petitioners was dismissed on 17.12.2021. The present petition was thereafter instituted to challenge those orders. The petitioners have now stated unequivocally that they no longer wish to pursue that challenge.
The respondents’ insistence that the challenge should nevertheless be decided on merits cannot, by itself, constitute a sufficient ground to compel the petitioners to continue the proceedings. The material consideration is whether permitting withdrawal would deprive the respondents of a right which has accrued to them under the adjudication already rendered.
In the present case, withdrawal of the petition would neither undo the order dated 28.02.2013 passed by the Prescribed Authority nor recall, reverse or otherwise nullify the appellate judgment and order dated 17.12.2021. Both adjudications shall remain undisturbed, and the respondents will not lose the benefit flowing therefrom merely because the petitioners have elected not to pursue the challenge before this Court. The concern underlying the principle in Rathinavel Chettiar can, therefore, be addressed without requiring continuation of the present petition.
The respondents’ objections concerning the alleged surrender of possession do not warrant a different conclusion. The petitioners assert that possession was surrendered on 07.04.2026 to Sri Narendra Kumar Agrawal with the consent of Sri Sanjeev Agrawal and Sri Manish Agrawal. The respondents dispute both the fact of surrender and the authority of the person said to have received possession. These rival assertions raise questions concerning the circumstances in which possession was allegedly delivered, the relationship of the recipient to the property and the parties, the nature and sufficiency of the alleged consent, and the legal consequences, if any, of such delivery.
These questions cannot appropriately be determined merely as an incident of deciding whether the petitioners may discontinue the present supervisory challenge. The same applies to the possession memo dated 07.04.2026. Whether the document was validly executed, whether the persons executing it were competent to do so, whether the person receiving possession was legally entitled to receive it, and what legal consequences follow from the document are matters which may require examination in appropriate proceedings. Their determination is neither necessary nor warranted for deciding the present withdrawal application.
It is, accordingly, clarified that no finding is being recorded as to whether possession was in fact surrendered on 07.04.2026 or whether any such surrender, if made, was legally valid or invalid. No opinion is expressed regarding the status, title or authority of Sri Narendra Kumar Agrawal, the sufficiency of the alleged consent of Sri Sanjeev Agrawal and Sri Manish Agrawal, or the genuineness or legal effect of the possession memo. The family settlement/Memorandum of Understanding has been noticed only as part of the explanation offered by the petitioners for seeking withdrawal. Its validity, binding character, implementation and legal effect are likewise left open.
The allegation that rent has remained unpaid since 01.09.2023 also does not, in the circumstances of the present case, furnish a legal impediment to withdrawal. The respondents seek payment of the alleged arrears and continuing rent until possession is delivered to persons legally entitled to receive it. The petitioners, on the other hand, rely upon the alleged surrender of possession. Whether any amount is due, for what period and at what rate, to whom it is payable, and whether the alleged surrender has any bearing upon the petitioners’ liability for rent are disputed matters dependent upon the parties’ respective rights and obligations and the facts established in that regard.
A direction requiring payment or deposit of the alleged arrears as a condition for permitting withdrawal would require this Court, in the course of deciding the withdrawal application, to examine the existence and extent of a disputed monetary liability. Such an enquiry is not necessary for determining whether the petitioners may discontinue the present challenge. It would, therefore, not be appropriate to make payment or deposit of the alleged arrears a condition precedent to withdrawal.
This conclusion does not amount to a finding that the respondents have no claim for rent, arrears or other lawful dues. Nor does withdrawal confer immunity upon the petitioners from any liability which may otherwise be enforceable against them in accordance with law. The respondents remain at liberty to pursue such claims and to take such steps for enforcement or execution of the orders already passed in their favour as may be available in law. The petitioners shall, in turn, be entitled to raise such defences as may be available to them. All such questions shall be determined by the competent forum on the basis of the pleadings and material properly placed before it.
The allegation that the petitioners seek withdrawal to avoid liability for rent or other consequences cannot, by itself, justify compelling them to continue a proceeding which they no longer wish to prosecute. If any monetary or other liability survives, its existence, extent and enforceability may be determined in appropriate proceedings. No opinion is expressed on the alleged arrears or on any claim or defence relating thereto.
The legal effect of withdrawal must, therefore, be clearly understood. The present petition is being brought to an end at the instance of the petitioners and not by an adjudication upon the merits of their challenge. Consequently, this Court neither affirms the correctness of the orders under challenge on merits nor sets them aside. The order dated 28.02.2013 passed by the Prescribed Authority and the appellate judgment and order dated 17.12.2021 shall remain undisturbed and operative, subject to such remedies as may otherwise be available in law. The withdrawal does not, by itself, determine the actual possession of the premises, establish the alleged surrender dated 07.04.2026, or adjudicate upon any liability for rent or other dues. Those matters are left open for determination by the competent forum, if occasion arises, in accordance with law.
The petitioners have not sought liberty to institute a fresh petition under Article 226 or Article 227 of the Constitution challenging the same orders on the same cause of action. The principle laid down in Sarguja Transport Service shall accordingly apply, and the petitioners cannot ordinarily circumvent the consequence of unconditional withdrawal by instituting another proceeding to re-agitate the same cause of action. This shall not preclude recourse to any remedy arising from a subsequent and distinct order or cause of action, to the extent permissible in law, nor shall it affect the respondents’ independent remedies.
The interim order dated 25.04.2022 was granted in aid of the challenge which the petitioners have now elected to withdraw. Upon termination of the present proceedings, that interim protection can no longer continue. Its vacation restores the position as regards the interim protection granted by this Court; it does not, by itself, constitute a finding that possession continues with the petitioners or that the alleged surrender was invalid. The respondents shall be at liberty to avail themselves of such remedies for giving effect to the orders dated 28.02.2013 and 17.12.2021 as are available to them in law.
For the reasons recorded above, this Court finds no legal impediment to permitting the petitioners to withdraw the present petition. The objections raised by the respondents do not establish that withdrawal would destroy an accrued right or nullify the adjudication rendered in their favour. The effect of the withdrawal is confined to bringing the present challenge to an end, while preserving the rights flowing from the orders already passed and leaving the disputed subsequent events and claims arising therefrom open for determination in appropriate proceedings.
Civil Misc. Withdrawal Application No. 3 of 2026 is allowed. The present petition is dismissed as withdrawn, without liberty to institute a fresh petition under Article 226 or Article 227 of the Constitution to re-agitate the same cause of action, subject to the principle laid down in Sarguja Transport Service.
The interim order dated 25.04.2022 stands vacated.
No finding is recorded on the validity or legal effect of the alleged family settlement/Memorandum of Understanding, the alleged surrender of possession dated 07.04.2026, the status or authority of Sri Narendra Kumar Agrawal, the alleged consent of Sri Sanjeev Agrawal and Sri Manish Agrawal, the genuineness or legal effect of the possession memo, the actual possession of the premises, or the alleged arrears of rent. All such questions are left open for determination, if necessary, by the competent forum in accordance with law, uninfluenced by any observation in this order on matters expressly left open.
There shall be no order as to costs.