Every procedure is permissible unless it is prohibited by the law hence withdrawal of withdrawal petition is also permissible in absence of contrary provision.

[C.A. DEV KUMAR KOTHARI]

RAJENDRA PRASAD GUPTA VERSUS PRAKASH CHANDRA MISHRA & ORS decided on 12.01.2011 by the Supreme Court. [2011 -TMI - 203143 - SUPREME COURT OF INDIA]

Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (1882)

Raj Narain Saxena Vs. Bhim Sen & others, AIR 1966 Allahabad 84 FB,

General discussion by author:

Complexity of law- and consequent uncertainty:

It is unfortunate but it is a ground reality that our laws are very complex. First of all we must recognize this aspect while thinking of any litigation. Over a period of time the law may become more complex due to development of law by amendments and also due to judicial pronouncements.  It is also unfortunate that our government has tendency to unsettle settled legal position by amending laws and that give ground for further litigation. All these results into uncertainty and contingencies.

Filing petitions/ appeals and their withdrawals:

One may file a petition or appeal on consideration of some aspects of the issue in hand. Later he may find that it is not worthwhile to pursue the petition / appeal and may withdraw the same. The withdrawal of petition or appeal is generally permissible but some enactments provide restrictions on such withdrawal. If there is no restriction, then an appeal or petition can be withdrawn.

Withdrawal of withdrawal application:

Sometimes one may find that he made a mistake by withdrawing the petition or appeal due to wrong reasons like wrong advice or wrong perceptions on the issue or it might have been withdrawn due to certain promises made by the opposite party. Even otherwise due to changes in legal position one may feel that he made mistake by withdrawing the petition or appeal. In such circumstances it may be necessary that the withdrawal petition be withdrawn and original proceedings be restored. This becomes more important when the stake is high, the changed situation or legal position warrant that original petition or appeal should be properly prosecuted.

Withdrawal of withdrawal application means restoration of original petition/ appeal:

Consequence of withdrawal of withdrawal application is that original petition or appeal is restored. In such circumstances the opposite party can raise objection on withdrawal of withdrawal application because he has to fact litigation. The courts should therefore, provide opportunity of hearing to opposite party to meet the principal of natural justice.

Principal of natural justice should be met:

A withdrawal of petition/ appeal etc. can generally be with permission of court or concerned authority. A withdrawal can be prejudicial to other party. Therefore, the other party can raise an objection. And the courts or authority should therefore, provide opportunity of hearing to opposite party to meet the principal of natural justice. This is equally applicable to withdrawal of appeal or petition as well as withdrawal of withdrawal petition which result into restoration of appeal or petition.

Recent judgment of Supreme Court:

In  RAJENDRA PRASAD GUPTA VERSUS  PRAKASH CHANDRA MISHRA & ORS decided on  12.01.2011 an   appeal, by special leave, was  filed against the Judgment of the Allahabad  High Court of Allahabad dated 06.02.2004 passed in FAFO No.2103/2003.

The appellant RAJENDRA PRASAD GUPTA was the plaintiff in Suit No. 1301 of 1997 before the Court of Civil Judge (Junior Division) Varanasi.

He filed an application to withdraw the said suit. (Per author – the withdrawal petition was pending without passing any order)

Later on he changed his mind and before an order could be passed in the withdrawal application he filed an application praying for withdrawal of the earlier     withdrawal   application.

The second application (to withdraw the withdrawal petition) was dismissed and that order was upheld by the High Court.

Therefore the appeal by special leave was filed before the Supreme Court.

The High Court took 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  therefore the  second application was not maintainable at all.

Supreme Court did not agree with this view and observed and held on the following lines (with highlights):

1. Rules of procedure are handmaids of justice.
2. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice.
3. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited,
4. It is notthat every procedure is prohibited unless expressly permitted.
5. There is no express bar in filing an application for withdrawal of the withdrawal application.
6. Referring to  judgment in case of  Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (1882)  and observation of Mr. Justice Mahmood,( the celebrated Judge – so described by their lordship) of the  Allahabad High Court,  noted the observations therein as follows  :-

"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed."

The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena Vs. Bhim Sen & others, AIR 1966 Allahabad 84 FB,

The supreme Court agreed with this  view.

Accordingly, their lordships of the Supreme Court expressed the opinion that the application praying for withdrawal of the withdrawal application was maintainable and accordingly order has been passed.

As such, the impugned judgment of the High Court has been set aside and the Appeal has been is allowed by the Supreme Court.

Authors further views for practice support:

In addition to the discussion made earlier the author want to point out following general principles:

There should be reason for making a petition or appeal it should not be just to indulge into litigation.

While filing petition of appeal it should be ascertained whether it can be withdrawn later on or that there can be situations in which withdrawal can be desirable.

The petition should be withdrawn only if there is some important reasons. The petition for withdrawal should contain such reasons which should be supported by evidence, logic and reasoning.

The court or authority should pass an order on such application for withdrawal after giving an opportunity to opposite party or other party likely to be affected like government. Presumption is not proper. In case the court finds that the petition itself was frivolous, the court can pass appropriate orders as to cost to compensate the opposite party.

Withdrawal of withdrawal application should also be based on some reason and logic and it should be in interest of justice. The petition should also be within a reasonable time. The withdrawal of withdrawal petition should be allowed only after giving opportunity of hearing to the opposite party.