Municipal Committee, Jind vs Suresh Kumar and another

A.P. Chowdhri, J.—This order will dispose of C.M. No. 2476-C of 1988 made by the Appellant for the withdrawal of R. S. A No. 148 of 1986 and C.M. 2613-C dated, 19.8.1988 under Order 1 Rule 10 of the CPC (hereinafter referred as ''the Code'') made by Raghbir Singh, Member of the Municipal Committee, Jind, and C M. No. 3539-C of 1988 under Order 1 Rule 10 of the Code made by 12 members of the Municipal Committee, Jind on 1.11.1988.

Briefly the material facts are that one plot No. 347-A in scheme No. 5 at Jind was allotted to Suresh Kumar Respondent in the R.S.A. on 13.4.1981. The allotment was, however, cancelled by the Administrator, Municipal Committee by order dated 27.4.1981. Suresh Kumar challenged the order of the Administrator cancelling the allotment in his favour. The learned Additional District Judge, Jind, in first appeal held that Suresh Kumar was the owner of the plot and the order of cancellation was illegal and had no effect. The Municipal Committee filed Regular Second appeal impleading Vijay Kumar as subsequent allotted as Respondent No. 2 The Regular Second Appeal was admitted on 10.4.1986 When it was pointed out on behalf of Vijay Kumar that his name has been struck off from the array of Appellants in the first appellate Court, his name was struck off from the Regular Second Appeal. On 8.8.1988 Shri Suresh Monga, Advocate, made an application for withdrawal of the Regular Second Appeal on the ground thatthe Improvement Trust-Municipal Committee, Jind had decided in a meeting that the Regular Second Appeal be withdrawn. when the application for withdrawal came up for consideration. Shri Raj Kumar Gupta, Advocate, opposed the same on the ground that the purported resolution of the Municipal Committee for the withdrawal of the appeal had not, in fact, been passed Later, Raghbir Singh, one of the members of the Municipal Committee, made an application under Order 1 Rule 10 of the Code Later on, 12 members of the Municipal Committee including Raghbir Singh made the second application under order 1 Rule 10 of the Code. In both these applications, resolution No. 36 dated 14.7.88 whereby the Municipal Committee purported to have resolved to withdraw the Regular Second Appeal was challenged as having never been passed and in the alternative the same having been passed in contravention of the provisions of the Haryana Municipal Act and the Bye-laws relating to the transaction of business framed thereunder. The applicants to the said petitions wanted to be impleaded in the Regular Second Appeal so as to protect the legitimate rights and interests of the Municipal Committee Detailed replies have been filed on behalf of the Municipal Committee as well as Suresh Kumar, Appellant and the Respondent, in the Regular Second Appeal opposing the said applications.

At this stage, it may be mentioned that Raghbir Singh. Municipal Commissioner. Jind filed an appeal u/s 245/246 of the Haryana Municipal Act before the Deputy Commissioner. Jind challenging the resolution No. 36 dated 14.7.1988. The appeal was dismissed by the Deputy Commissioner, Jind by his order dated 30.8.1988. A further appeal to the State Government also met the same fate.

The learned Counsel for the Appellant Municipal Committee contended that the Appellant had an unfettered right to withdraw its appeal. This was so even where the prayer was opposed by the opposite party. In the present case, he pointed out that the applicants were not even parties to the Regular Second Appeal and they had no locus standi to oppose the prayer for withdrawal of the appeal. Reliance was placed on Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co., This was a case relating to withdrawal of a suit. It was held that the language of Order 23, Rule 1, Sub-rule (1) of the Code gives an unqualified right to a Plaintiff to withdraw from a suit and, if no permission to file a fresh suit is sought under Sub-rule (2) of that Rule, the Plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under sub Rule (3) of that Rule it was further held that there was no provision in the CPC which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the Plaintiff to proceed with it. In Bijayananda Patnaik Vs. Satrughna Sahu and Others, . It was held that what was true in the case of withdrawal of a suit was good so far as withdrawal of appeals in the High Court is concerned. The provisions of Order Rule 1 (11 and (3) were held to apply in the same manner to withdrawal of appeals as they applied to the suits In Civil Writ Petition, No. 4397 of 1988, counsel for the writ Petitioner, namely, Municipal Committee, Bhiwani, sought to withdraw the petition. The withdrawal was opposed by the Advocate who earlier represented the Municipal Committee The first Division Bench consisting of Hon''ble the Chief Justice and G.R. Majithia, J., permitted the withdrawal of the, Civil Writ Petition by order dated 22-8-1988 with the direction that the vakalatnama filed by Shri I.S. Balhara previous Advocate and Mr. A. Mohunta, who filed an application for withdrawal, be kept in a sealed cover.

The contention of learned Counsel for the applicants is that the Municipal Committee is not a private individual and where majority of the members find that the interest of the Municipal Committee were being sacrificed, they were entitled to come forward and make an application to be impleaded as parties. Reliance was placed on Mewa Singh and Ors. v. Dalip Singh (1976) 78 P.L.R. 380. It was also argued that in the case of a company the majority of the shareholders were entitled, to sue in the name of the company. Subject to whatever relief the applicants may get, prima facie the material placed on the record shows that the impugned resolution was passed by the Municipal Committee and the appeal against the validity of the resolution has been dismissed by the Deputy Commissioner and the State Government. Once the Appellant decides to withdraw the appeal, the Court cannot stand in the way except in certain exceptional cases mentioned in the aforesaid judgment of the Supreme Court. The present case is not a case falling in any of those exceptions. In the facts of the present case, it has not been challenged that Shri Suresh Monga, Advocate, who seeks to withdraw the appeal has not been duly authorised by the Municipal Committee, Jind, Appellant in the Regular Second Appeal, to withdraw the appeal. It is, therefore, not necessary to pass an order in terms of the order of the Division Bench to which reference has already been made.

For the reasons mentioned above, the Civil Miscellaneous No. 2476 C of 1988 is allowed and the Regular Second Appeal No. 148 of 1986 is dismissed as withdrawn. The remaining two civil miscellaneous application Nos. 2613-C of 1988 and 3539-C of 1988 under Order 1 Rule 10 of Code are dismissed. There will be no order as costs.