ANIL KUMAR SINGH versus V!JAY PAL SINGH & ORS.

Citation: [2017] 11 S.C.R. 74 · Decided: 30-11-2017 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

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(2017] l l S.C.R. 74 
ANIL KUMAR SINGH 
v. 
V!JAY PAL SINGH & ORS. 
(Civil App~al No. 20007 of 2017) 
NOVEMBER 30, 2017 
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.] 
Code of Civil Procedure. 1908: 
Order XX! II, 1: I - Application unda - Seeking permission ro 
withdraw suit for injunction - Allowed by Trial court and affirmed 
by Revision Court - 111 writ petition by defendant, High Court set 
aside the orders of trial court and revision court and directed the 
plaintiff to put the defendant in possession of the suit land - On 
appeal. held: The writ petition was confined to rhe question of 
withdrawal of the suit and not of grant of injunction - The High 
Court commitled jurisdictional error by going beyond the scope of 
the writ petition having travelled in the issue relating lo gra/1/ of 
injunction in respecr of the suit land - Trial Court and Revision 
Courr were j11stified in permitting the plaimijf to withdraw the suit -
High Court was not right is setting aside their ordei:y and directing 
to place defendant No. I in possession of the sui1 land. 
Allowing the appeal, the Court 
HELD: l. When the plaintiff files an application under Order 
XXIII Ruic 1 CPC and prays for permission to withdraw the suit, 
whether in full or part, he is always at liberty to do so and in such 
case, the defendant has no right to raise any objection to such 
prayer being made by the plaintiff except to ask for payment of 
the cost to him by the plaintiff as provided in sub-rule (4). The 
reason is that while making a prayer to withdraw the suit under 
Rule 1(1), Hie plaintiff does not ask for any leave to file a fresh 
suit on the same subject matter. A mere withdrawal of the suit 
without asking for anything more can, therefore, be always 
permitted. (Paras 24, 251181-C-D] 
2. However, when the plaintiff applies for withdrawal of the 
suit along \Yilh a prayer to grant him permission to file a fresh 
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ANIL KUMAR SINGH v. V!JAY PAL SINGH & ORS. 
75 
suit on the same subject matter as provided in sub-rule (3) of A 
Ruic 1 then in such event, the defendant can object to such prayer 
made by the plaintiff. In such event, it is for the Court to decide 
as to whether the permission to seek withdrawal of the suit should 
be granted to the plaintiff and, if so, on what terms as provided in 
sub-rule (3) of Ruic I. [Para 26][81-E-F[ 
3. In the present case, since the appellant had applied for 
withdrawal of the suit under Order XXlll Ruic 1, the Trial Court 
was justified in permitting withdrawal of the suit subject to the 
appellant paying cost of Rs.350/- to respondent No.I (defendant 
No.I). Such order was in conformity with sub-rule (3) of Ruic 1 
and was rightly upheld by the Revision Court. [Para 27]181-C-H] 
4. The High Court committed jurisdictional error in 
allowing the defendant's writ petition by finding fault in the orders 
of the Trial Court and Revision Court and giving directions to 
the plaintiff to place defendant No.l in possession of the suit land 
without there being any basis whatsoever. The High Court should 
have seen that the scope of writ petition was confined to examine 
the question as to whether the Trial Court and Revision Court 
were justified in allowing the application filed hy the plaintiff under 
Order X.XIJI Ruic I CPC and to decide this question, the High 
Court should have confined its inquiry to examine as to whether 
the requirements of Order XXIII Ruic l were complied with or 
not but not beyond it. There was, therefore, no justification on 
the part of the High Court to have travelled in the issues relating 
to the grant of injunction in relation to the suit land and give 
direction to the appellant (plaintiff) to place respondent No. 1 in 
possession of the suit land. [Paras 28, 29 and 30][82-A-D] 
5. The High Court should have seen that the issue of grant 
of injunction was not the subject matter of the writ petition and, 
therefore, it had nothing to do with the question of grant of 
injunction and secondly, the withdrawal of a suit was governed by 
Order XXIU Ruic 1 CPC whereas the injunction was governed 
by Order XXXIX Rules 1 and 2 CPC. Both operate in different 
spheres. That apart, the defendant did not challenge the ex-parte 
grant of injunction order in appeal under Order XLlll Ruic J(r) 
and nor contested it before the Trial .Court. It was only in these 
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76 
SUPREME COURT REPORTS 
[2017] I l S.C.R. 
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two forums, the issue of injunction 

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