Gujarat High Court
Kantilal Ambalal Patel Thro Poa … vs State Of Gujarat on 6 May, 2026
NEUTRAL CITATION
C/SCA/7670/2013 IA ORDER DATED: 06/05/2026
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Reserved On : 13/04/2026
Pronounced On : 06/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 1 of 2026
(FOR WITHDRAWAL OF MATTER)
In
R/SPECIAL CIVIL APPLICATION NO. 7670 of 2013
With
CIVIL APPLICATION NO. 1 of 2013
(FOR JOINING PARTY)
In
R/SPECIAL CIVIL APPLICATION NO. 7670 of 2013
With
CIVIL APPLICATION NO. 1 of 2018
(FOR JOINING PARTY)
In
R/SPECIAL CIVIL APPLICATION NO. 7670 of 2013
With
CIVIL APPLICATION NO. 2 of 2018
(FOR JOINING PARTY)
In
R/SPECIAL CIVIL APPLICATION NO. 7670 of 2013
With
CIVIL APPLICATION NO. 1 of 2026
(FOR WITHDRAWAL OF MATTER)
In
R/SPECIAL CIVIL APPLICATION NO. 7671 of 2013
With
CIVIL APPLICATION NO. 1 of 2018
(FOR JOINING PARTY)
In
R/SPECIAL CIVIL APPLICATION NO. 7671 of 2013
With
CIVIL APPLICATION NO. 2 of 2018
(FOR JOINING PARTY)
In
R/SPECIAL CIVIL APPLICATION NO. 7671 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=======================================================
Approved for Reporting Yes No
- √
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=======================================================
LEGAL HEIR OF KANTILAL AMBALAL PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
=======================================================
Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR ADITYA A
GUPTA(7875) for the Petitioner(s) No. 1
MR JAY TRIVEDI, AGP for the Respondent(s) No. 1
MR SN SOPARKAR, SENIOR ADVOCATE WITH MR KURVEN K
DESAI(7786) for the Respondent(s) No. 5
MR KARAN G PATEL(10145) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
Appearance:
CIVIL APPLICATION (FOR JOINING PARTY) NO.1 OF 2018 IN
SPECIAL CIVIL APPLICATION NO.7670 OF 2013
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MS VENU H
NANAVATY for the Applicant(s) No.1
MR.PARTH CONTRACTOR for the Respondent(s) No.1
MR JAY TRIVEDI, AGP for the Respondent(s) No. 2
MS ARCHANA R ACHARYA for the Respondent(s) No.6
MR TARAK DAMANI for the Respondent (s) No. 5
Appearance:
CIVIL APPLICATION (FOR JOINING PARTY) NO.1 OF 2018 IN
SPECIAL CIVIL APPLICATION NO.7671 OF 2013
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MS VENU H
NANAVATY for the Applicant(s) No.1
MR.PARTH CONTRACTOR for the Respondent(s) No.1
MR JAY TRIVEDI, AGP for the Respondent(s) No. 2
MR TARAK DAMANI for the Respondent (s) No. 5 -8
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 06/05/2026
CAV JUDGMENT
1. Rule. Learned advocates appearing for the
respective parties waive service of notice of
rule.
2. By way of filing present applications, the
applicants have prayed for permission to withdraw
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main writ petitions being Special Civil
Application Nos.7670 & 7671 of 2013
unconditionally.
3. Heard learned Senior Counsel, Mr. Shalin Mehta
assisted by learned advocate, Mr. Aditya Gupta
with learned advocate, Mr. Harshal Boradiya for
applicant of CA No.1/2026 in SCA No.7670/2013 & CA
No.1/2026 in SCA No.7671/2013, learned Senior
Counsel, Mr. S.N. Soparkar assisted by learned
advocate, Mr. Kurven Desai for the respondent no.5
of CA No.1/2026 in SCA No.7670/2013 & CA No.1/2026
in SCA No.7671/2013, learned advocate, Mr. B.S.
Patel assisted by learned advocate, Mr. Umang Oza
for learned advocate, Mr. Chirag Patel for the
respondent no.9 of CA No.1/2026 in SCA
No.7671/2013 and learned Senior Counsel, Mr.
Anshin Desai assisted by learned advocate, Ms.
Venu Nanavaty for learned advocate, Mr. S.A.
Chhabaria for the applicant of CA Nos.1 & 2 of
2018 in SCA Nos.7670 & 7671 of 2013.
4. Learned Senior Counsel, Mr. Shalin Mehta submitted
that the present matter has a chequired history
having several litigation from the revenue
authorities reached upto the Hon’ble Supreme
Court, therefore before making submissions on
merits, certain sequence of incident of events are
required to be considered, which are as under,
4.1 One Shri Kantilal Ambalal Patel being
Administrator of Kantilal Ambalal Patel HUF
had filed one Special Civil Suit No.149/2005
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against 5 – Gayatrinagar Cooperative Society
before the court of learned Civil Judge,
Vadodara on 30.03.2005, wherein amicable
settlement had taken place between the
parties and based upon the said compromise
arrived at between the parties, a consent
decree was passed by the learned Civil Judge,
Vadodara on 30.04.2005 in favour of Kantilal
Ambalal Patel HUF and on the basis of the
said consent decree, five different
registered sale deeds came to be executed on
22.11.2010 in favour of Kantilal Ambalal
Patel HUF and on the basis of said registered
sale deed, necessary entries came to be
mutated in the revenue record.
4.2 However subsequently, some of the members of
the Gayatrinagar Cooperative Societies had
challenged the aforesaid consent decree
before this Hon’ble Court by way of filing
First Appeal Nos.1827 & 1828 of 2021, however
pending said first appeals, the said Kantilal
Ambalal Patel passed away, therefore, his
legal heirs were brought on record.
4.3 However pending above first appeals, certain
applications were preferred by the third
party to join them as party respondents
contending inter alia that they are the
necessary and proper party, therefore at the
time of deciding the said first appeal, their
presence is required, however, those
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applications have been rejected.
4.4 Thereafter pending aforesaid first appeals,
amicable settlement had arrived at between
the parties and accordingly, a request was
made before the Division Bench of this Court
for withdrawal of Special Civil Suit
No.149/2005 unconditionally by giving up,
waiving and abandoning all claims made in the
suit and after considering the said request,
the said First Appeals had been allowed by
the Division Bench of this Hon’ble Court by
an order dated 22.09.2022 with a specific
direction to permit the legal heirs of the
original plaintiff to withdraw the main
proceedings and thereby the decree passed by
the learned Civil Court has been quashed and
set aside and the original plaintiffs were
permitted to withdrawn the proceedings.
4.5 Being aggrieved by the said decision of the
Division Bench of this Court, the third party
had approached the Hon’ble Supreme Court by
filing Special Leave Petition (Civil)
Nos.6769-6770 of 2023 & Special Leave
Petition (Civil) Nos.6774-6775 of 2023,
however, the said SLP came to be dismissed of
by the Hon’ble Supreme Court by an order
dated 03.02.2026.
4.6 In short, the proceedings initiated at the
instance of Kantilal Ambalal Patel HUF had
been permitted to withdraw the main suit
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proceedings and the possession of the land in
question is restored to earlier stage i.e. in
the name of 5 – Gayatrinagar Society.
5. Learned Senior Counsel, Mr. Mehta submitted that
in fact, pursuant to the registered sale deed,
certain entries were mutated in the revenue record
and members of the society were aggrieved by the
said entry, therefore, they had made
representation to the Collector, pursuant to
which, RTS proceedings have been initiated and
ultimately, those entries have been declared as
cancelled, therefore, the said order cancelling
the entries was challenged by the petitioner
before this Hon’ble Court by way of filing present
petition, wherein the order of the Collector has
been stayed by this Hon’ble Court. He submitted
that pending present petition, amicable settlement
has been arrived at between the parties,
therefore, the petitioners herein have decided to
withdrawn the present proceedings unconditionally
instituted by their father.
6. Learned Senior Counsel, Mr. Mehta submitted that
it is well established principle of law that the
revenue entries are required to be maintained by
giving effect to the civil rights of the parties.
He submitted that the impugned order of the
Collector is based upon the execution of the
registered sale deed, that too, based upon the
consent decree passed by the competent civil court
and the said suit instituted by the father of the
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petitioners had already been withdrawn with all
consequential effect, therefore, automatically by
virtue of the order passed by the Division Bench
of this Hon’ble Court, effect of the execution of
the registered sale deed are declared as quashed
and set aside and the effect of the said deed
would become redundant, therefore, the entry
mutated in the revenue record based upon the
execution of the said registered sale deed would
automatically treated as cancelled and, therefore,
the present applications are filed with a prayer
that they may be permitted to withdraw the
proceedings instituted by them challenging the
impugned order passed by the Collector. He
submitted that if the application is preferred to
withdraw the proceedings unconditionally, in that
event, automatically the said application is
required to be considered in certain eventuality.
He, however, submitted that the said application
cannot be considered on the ground that (1) if the
Hon’ble Court finds that upon giving permission to
withdrawn the proceedings unconditionally, it
would create fraud upon the rights of third party;
(2) it would cause any prejudice to third party;
(3) if they are found guilty in overreaching the
proceedings; and (4) if granting permission would
become contrary to the decision rendered by the
Division Bench i.e. not in consonance with the
order of the Division Bench. He submitted that
considering the above grounds coupled with the
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aforesaid factual aspects as stated above itself
goes on to show that civil rights of the parties
have already been crystallized by the competent
civil court and confirmed by the Hon’ble Supreme
Court and thus, civil rights have already been
attained finality. He, therefore, submitted that
considering above factual aspects of the matter,
these applications may be considered and the
applicants may be permitted to withdraw the
present proceedings.
7. Learned Senior Counsel, Mr. Soparkar submitted
that his client is also sailing on the same boat,
therefore, he is adopting the arguments canvassed
by learned Senior Counsel, Mr. Shalin Mehta for
the applicants. He submitted that the proceedings
have been initiated at the instance of the
original petitioners cannot be objected by third
party and it is obviously prerogative of the
Hon’ble Court to permit the person concerned to
withdraw the proceedings unconditionally. He
submitted that in the revenue proceedings, revenue
entries are mutated in the record with a sole
intent to collect taxes and generally used for the
fiscal purpose. He submitted that by mutating the
name of the parties in the revenue record, it
would not decide any civil rights of the parties
when conveyance deed executed by the petitioner
itself is quashed and set aside, therefore, based
upon the execution of the said deed, if any entry
was mutated in the revenue record, it would
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automatically require to be declared as cancelled
and in absence of execution of the registered
deed, the cause involved in the matter has become
in fructuous, therefore without there being any
cause available, keeping the parties in continuous
in litigation would amount to abuse of the process
of law. He submitted that in fact in earlier round
of litigation, wherein First Appeals had been
preferred by Gayatrinagar Cooperative Society
against the petitioner, wherein third party
objector had filed an application for joining him
as party respondent specifically contending that
based upon the execution of the registered sale
deed, certain further transactions have been
carried out by the father of the petitioners by
way of executing agreement to sale after receiving
huge volume of amount, therefore, they are
necessary and proper party and their civil rights
are interconnected and interlinked with the
outcome of the proceedings of First Appeals,
therefore, they may be heard. He submitted that
however despite pointing out all above facts, the
said civil application had been rejected by the
Division Bench of this Hon’ble Court by detailed
order and the said order has been confirmed by the
Hon’ble Supreme Court in the SLP preferred by the
third party, therefore, their rights have already
been crystallized. He further submitted that at
the time of filing SLP before the Hon’ble Supreme
Court, third party has raised all available
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contentions in the said SLP, copy of memo of SLP
is produced on record. He, therefore, submitted
that once having contended all contention, it is
not open for third party to raise all those
contentions again and again in all proceedings
despite having no locus. He further submitted that
in view of the numerous decisions of the Hon’ble
Supreme Court as well as this Hon’ble Court, it is
settled proposition of law that every applicant
has right to withdraw the proceeding
unconditionally and third party, whose rights have
already been decided and considered, has no right
to raise dispute about the unconditional
withdrawal of the proceedings instituted at the
instance of the father of the petitioners.
8. Learned Senior Counsel, Mr. Mehta, at this stage,
has taken this Court towards the observations made
by the Division Bench of this Hon’ble Court while
passing Judgment dated 22.09.2022 in First Appeal
No.1827/2021 and allied matter and submitted that
if the Hon’ble Court would make cursory glance
upon the said observations, in that event, it is
evident that the Division Bench has crystallized
the rights of third party, which has been upheld
by the Hon’ble Supreme Court. He, therefore,
submitted that considering the said observations,
here in the present case, third party has no locus
to stand. He, therefore, submitted that the
present applications may be allowed as prayed for.
9. Learned Senior Counsel, Mr. Soparkar, at this
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stage, has referred to and relied upon the
Judgment dated 17.12.2019 delivered by the
Coordinate Bench of this Hon’ble Court in Civil
Application No.1/2019 in Special Civil Application
No.3409/2007 with Civil Application No.1/2019 in
Special Civil Application No.3410/2007 in case of
Manoramya Resorts and Hotels Pvt. Ltd. Vs. Tinaben
Behram Mehta and emphasized the observations made
therein. He submitted that as per the said
decision, every applicant has a right to
unconditionally withdrawn his application and no
order of Hon’ble Court is necessary permitting him
to withdraw the application and in fact, the
Hon’ble Court may take a formal order disposing of
the application as withdrawn.
10. Learned advocate, Mr. B.S. Patel has submitted
that in fact, all the arguments have already been
canvassed by learned Senior Counsel, Mr. Soparkar,
therefore just to avoid repetition, he is not
making submissions in detailed. He, however,
submitted that in fact, third party has no locus
in the present proceedings instituted by the
original petitioners in view of the fact that
their rights have already been crystallized by the
Division Bench of this Hon’ble Court and even by
the Hon’ble Supreme Court and it seems that with
malafide intention, the aforesaid applications for
joining them as party respondents have been
preferred, which may not be entertained.
11. Learned advocate, Mr. Patel has referred to and
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relied upon following decisions,
(1) the judgment in case of Narharibhai
Chaturbhai Patel & Ors. Vs. Ashish
Mukundlal Shah & Ors., reported in 2022 (4)
GLR 2514;
(2) the judgment in case of Patel Dineshbhai
Mohanbhai Vs. Naranbhai Ramdas, reported in
2005 (1) GLR 116;
12. Referring to the aforesaid decisions of this
Hon’ble Court, learned advocate, Mr. Patel
submitted that in case of settlement between the
original plaintiff and the defendant, if the
original plaintiff wants to withdraw the suit
unconditionally, the Hon’ble Court has no
jurisdiction to refuse such unconditional
withdrawal unless there is any counter-claim or
set-off claimed by the defendat in the said suit.
13. Learned Senior Counsel, Mr. Anshin Desai appearing
for the third party has objected to the grant of
relief as prayed for in the present applications
with a vehemence and submitted that the father of
the petitioners had instituted civil suit, wherein
compromise had been arrived at between the parties
and consent decree was passed by the Court and on
the basis of the said decree, five different sale
deeds have been executed between the parties and
pursuant to which, entries were mutated in the
revenue record and those proceedings have been
carried before the revenue authority in the year
2005 and based upon execution of the document, the
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name of the father of the petitioners came to be
mutated in the revenue record and thereby an
impression is created that they are the absolute
owner and occupiers of the said land on the
strength of the execution of the registered sale
deed, therefore, the petitioners contacted the
respondent no.2 and ultimately, entered into
transaction with the respondent no.3. He submitted
that huge volume of amount of Rs.7.50 crores have
been given to all the petitioners, who are the
legal heirs of Kantilal Ambalal Patel through
cheques and documents to that effect have been
placed on record and they have also issued
receipts about the same and thus, after pocketing
huge volume of amount from the respondent no.3,
the petitioners herein have entered into deed of
settlement with the original members of the
Gayatrinagar Society and then after, tried to
withdraw the original proceedings instituted at
the instance of their father and as soon as the
respondent no.3 had come to know about the said
fact, they have immediately filed civil
application to join them as party respondents as
they are proper and necessary party. He submitted
that in fact, based upon the execution of the
agreement to sale and non-fulfillment of the
conditions of the deed, they have filed suit for
specific performance before the competent court
despite the fact that all the proceedings have
been initiated at the instance of the concerned
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respondent, they have tried to jeopardize the
civil rights of the parties by way of filing
application to withdraw the proceedings
unconditionally instituted before the competent
civil court by the father of the petitioners. He
submitted submitted that in fact, the members of
the Society had already filed an application to
join them as party in the civil proceedings
instituted at their instance, the said application
had not been entertained.
14. Learned Senior Counsel, Mr. Desai submitted that 5
– Gayatrinagar Society had filed five different
suits before the court of learned Civil Judge,
Vadodara, wherein the applicant herein had
preferred an application for joining him as party
respondent, however surprisingly, the said
application came to be dismissed, against which,
writ petitions were preferred before this Hon’ble
Court challenging the said order, however, the
Coordinate Bench of this Hon’ble Court had
rejected the said writ petition and being
aggrieved by the said order, SLP was preferred,
which was also dismissed by the Hon’ble Supreme
Court. He, however, submitted that in fact, at the
time of deciding the aforesaid writ petition, the
Coordinate Bench of this Hon’ble Court has given
detailed reason that how the applicant is affected
by the outcome of the proceedings and they are to
be considered as necessary and proper party. He
further submitted that if the petitioners are
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permitted to be withdrawn the present proceedings
as prayed for, in that event, rights of the
parties would be clearly affected and they are
proper and necessary parties in the proceedings
and the said application preferred by him for
joining him as party respondent is still pending,
which ultimately jeopardize their civil rights,
which cannot be compensated in terms of money,
therefore, the present applications are required
to be rejected.
15. Learned Senior Counsel, Mr. Desai has referred to
and relied upon following decisions,
(1) the judgment in case of R. Union of India &
Ors. Vs. N. Murugesan & Ors., reported in
(2022) 2 SCC 25;
(2) the judgment in case of R. Danasundari @ R.
Rajeshwari Vs. A.N. Umakanth & Ors.,
reported in (2020) 14 SCC 1;
(3) the judgment in case of Pruthvirajsinh
Nodhubhai Jadeja Vs. Jayeshkumar Chakkaddas
Shah & Ors., reported in (2019) 9 SCC 533;
(4) the judgment in case of R. Suzuki
Parasrampura Suitings Pvt. Ltd. Vs.
Official Liquidator of Mahendra
Petrochemicals Ltd. & Ors., reported in
(2018) 10 SCC 707;
(5) the judgment in case of Avenue Supermarts
Pvt. Ltd. Vs. Nischint Bhalla & Ors.,
reported in (2016) 15 SCC 411;
(6) the judgment in case of Sanjay Kumar Vs. V.
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State of Bihar & Anr., reported in (2014) 9
SCC 230;
(7) the judgment in case of Amar Singh Vs.
Union of India, reported in (2011) 7 SCC
69;
(8) the judgment in case of R. Joint Action
Comittee of Air Line Pilots Association of
India (Alpai) & Ors. Vs. Director, reported
in (2011) 5 SCC 435;
(9) the judgment in case of Mumbai
International Airport Pvt. Ltd. Vs. Golden
Chariot Airport & Anr., reported in (2010)
10 SCC 422;
(10) the judgment in case of R. Karam Kapahi &
Ors. Vs. Lal Chand Public Charitable Trust
& Anr., reported in (2010) 4 SCC 753;
(11) the judgment in case of Suresh Kumar Bansal
Vs. Krishna Bansal & Ors., reported in
(2010) 2 SCC 162;
(12) the judgment in case of Sneh Gupta Vs. V.
Devi Sarup & Ors., reported in (2009) 6 SCC
194;
(13) the judgment in case of R. Rathinavel
Chettiar Vs. V. Sivaraman & Ors., reported
in (1999) 4 SCC 89;
(14) the judgment in case of Babu Ram @ Durga
Prasad VS. Indra Pal Singh, reported in
(1998) 6 SCC 358;
(15) the judgment dated 28.03.2018 passed by
this Hon’ble Court in Special Civil
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Application No.18816/2017 and allied
matters;
16. Learned Senior Counsel, Mr. Desai submitted that
in view of the ratio laid down by the Hon’ble
Supreme Court as well as this Hon’ble Court,
position has been crystallized that conduct of the
petitioner about the approbate and reprobate
condition is required to be seen at the time of
passing order. He, therefore, urged that the
present applications seeking withdrawal of the
main writ petitions may not be entertained and it
may be rejected.
17. In view of the rival submissions canvassed by
learned advocates for the parties and having
considered the facts of the case coupled with the
material and evidence available on record, the
moot question, which has arisen for consideration
of this Court, is as to whether the Court can
permit the applicants to withdraw the main writ
petitions preferred by them in view of the
controversy involved in the matter and as to
whether the third party, who is sought to be
impleaded as party respondent and whose rights
have already been crystallized by the Hon’ble
Court, can be allowed to join in the proceedings.
18. Having considered the facts of the case, as stated
above, it appears that the father of the
petitioners viz., Kantilal Ambalal Patel entered
into sale transaction for the land bearing Survey
Nos.320, 320/1, 329 & 332 situated in Village :
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Pipadiya, Taluka : Waghodiya, District : Vadodara
by way of executing agreement to sale and at that
point of time, entire sale consideration was paid
to the land owners, however as there was no
response from the land owner, Kantilal Ambalal
Patel being Administrator of Kantilal Ambalal
Patel HUF had filed Special Civil Suit No.149/2005
before the court of learned Civil Judge, Vadodara
inter alia praying for specific performance
against 5 – Gaytrinagar Cooperative Housing
Society Ltd., wherein amicable settlement had
taken place and on the basis of it, consent decree
came to be passed in the aforesaid suit on
30.03.2005 and on the basis of the said consent
decree, five different sale deeds came to be
executed in favour of the father of the
petitioners viz., Kantilal Ambalal Patel on
22.10.2010, however subsequently, some members of
the said Gayatrinagar Cooperative Housing Society
had challenged the aforesaid consent decree before
this Hon’ble Court by filing First Appeal Nos.1827
& 1828 of 2021, wherein also amicable settlement
had taken place and on the basis of same, the said
first appeals came to be disposed of. It is
required to be noted that in connection with the
aforesaid sale transactions, FIR has been
registered and the said criminal proceedings are
pending for its adjudication. Thereafter, the
aforesaid entries mutated in favour of Kantilal
Ambalal Patel have been taken into suo motu by thePage 18 of 46
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revenue authorities and, thereafter, same were
cancelled, therefore against the cancellation of
those entries, the present petitions have been
preferred challenging those orders.
19. In the aforesaid writ petitions, third party has
prayed for impleadment on the ground that if any
order is passed in their absence, in that event,
their rights would be adversely affected. It is
required to be noted that third party had
preferred an application for impleading them as
party respondents in the first appeals preferred
by 5 – Gayatrinagar Cooperative Housing Society,
which was rejected by the Division Bench of this
Hon’ble Court by detailed order, against which,
SLP was preferred, which was also dismissed. It is
required to be noted that while rejecting the
application by the Division Bench of this Hon’ble
Court, the rights of the third party have been
crystallized. Relevant observations made by the
Division Bench are as under,
“30. So far as applicant of 6/2018 is concerned, the
Court cannot be oblivious of the fact that Mr.
Kalpesh sell which is in breach of the status quo
order. It is the statutory right of the plaintiff
to withdraw the suit, the order of status quo in
Appeal from Order cannot take away such
prerogative right of the plaintiff merely
apprehending the sale deeds would be nullified.
Again, this court would ensure the parties to be
availed their remedies in their respective legal
pursuits.
31. The essential arguments on the part of the third
party is that permitting this withdrawal
would amount to the sale deeds being gone and the
suit of Mr. Kalpesh Patel seeking enforcement of
the agreement would be rendered redundant and
thus the withdrawal is an abuse of process to
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destroy the rights of the others.
32 There appears prima facie no transfer of interest
in favour of Mr. Kalpesh Patel and Ms. Dolly
Patel is herself disputing the alleged agreement
executed with him. Even if, she is not permitted
to question the same, the probable adverse fate
of a suit instituted by third party should not be
a relevant factor for permitting plaintiff an
unconditional right to withdraw the suit. It is
not the dishonest attempt on the part of the
father of Ms. Dolly Patel- Kantilal Patel, which
needs to be overemphasized at this stage, but the
Court needs to essentially regard the right of
the members of the societies, who were kept in
complete dark at the time when the societies were
represented by the accountant of Mr.
Kantilal Patel himself. Even without entering in
all these details, the Court can notice the fact
that the District Registrar’ s permission, which
was a must for any sale of the properties of the
societies was not only missing, but the same was
concocted. Later on, criminal proceedings in that
relation have already culminated into the filing
of the charge-sheet and supplementary charge-
sheet. The quashing petitions against these FIRs
also have not yielded any fruits in favour of
the plaintiff and his legal heirs. These are
glaring indications decreeing of the Special
Civil Suit No. 149 of 2005 on 30. 04. 2005
within one month of its filing by way of a
consent decree when questioned and challenged
seriously by way of an appeal, initially by eight
members by way of First Appeal No. 1827 of 2021
and thereafter by 65 others by way of First
Appeal No. 1828 of 2021 seeking to quash and set
aside the compromise decree passed by the learned
9th Joint Civil Judge, Vadodara in Special Civil
Suit No. 149 of 2005 pursuant to the compromise
entered into by respondent No. 1 Mr. Kantilal
Ambalal Patel on one hand and rest of the
respondents on other hands namely Gayatrinagar
Cooperative Housing Society (Balasinor
group,Gayatrinagar Cooperative Housing Society
( Parla group) , Gayatrinagar Cooperative Housing
Society ( Valkeshwar group) , Gayatrinagar
Cooperative Housing Society (Khetivadi group)
and Gayatrinagar Cooperative Housing Society
( Alkapuri group) respectively respondent Nos. 2
to 5. It has been challenged on the ground that
it is fraud upon the appellants for the same
having been entered only with a view to frustrate
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the rights of the appellants and the other plot
holders, who are the members of the respondent-
societies.
33. This background shall need to be borne in mind
that Ms. Dolly Patel now in wake of death of
Kantilal Patel when is seeking to withdraw the
original suit itself and these are not the
appeals arising from the matters of third parties
who are before this Court questioning and
challenging the very suit. They were never
parties to the suit and this peculiar background
of questioning and challenging the consent decree
will need to be borne in mind by this Court.
There is no party which can be permitted to go
before the trial Court to question and withdraw
the suit itself, it is for this Court to permit
the plaintiff to withdraw the suit and as
mentioned hereiabove and is well established. The
appeal being a continuation of the same, the
heirs of original plaintiff if realises the
mistake or if choosen to withdraw, it can always
set it right and seek the withdrawal.
34. If in the process, Ms. Dolly Patel is allegedly
attempting to defraud the third parties, whose
interest averred to have been created, they have
legal recourse available to pursue. Nobody can be
permitted to raise its claim on a shaky
foundation and here it is quite apparent from the
numbers of documents, chronological events and
the consequential steps taken by the plaintiff to
come to the conclusion that the challenge to the
so called consent decree on the part of the
societies is a genuine contest, there is no
reason for them to approach this Court as an
appellant if, they had no lis against the
respondents-original plaintiffs. The misdeeds of
selling the entire societal land without the
permission of the District Registrar is staring
in the face of the respondents-original
plaintiffs and have been further vindicated by
way of the criminal proceedings which have
resulted into the charge-sheets and supplementary
charge-sheet. Every challenge to these FIRs has
failed right up to the Apex Court and this also
further establishes the claim of the appellants,
who have every right to question and challenge
this consent decree.
35. Even while recognizing the right of the third
parties to pursue the respective remedies against
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the original plaintiffs-Mr. Kantilal Patel and
his heirs and even without entering into any kind
of allegations of these third parties having
approached this Court belatedly or their having
entered into these litigations surreptitiously
with total comprehension and contrary to the
public policy, they can be permitted to establish
their independent rights before the respective
Courts in their civil litigations which they may
establish at future date. However, for them to
sustain such litigation, decree which has been
based on ex facie fraudulent act on the part of
the respondent cannot be permitted to be further
continued. Their own suit also require such
decree to be set aside and therefore, this
withdrawal may support their rights in
consequence.
36. Resultantly, while permitting the third parties
not to be impleaded as the parties in these
appeals, the withdrawal is permitted of the
original suits consequently allowing both these
appeals. They though were not the parties to the
proceedings and their applications for
impleadment are decided simultaneously, they are
already availed opportunities to address this
Court on merit of the matter and as mentioned
above, when they are already having their
independent rights to pursue the remedy, their
impleadment may not be necessary.
37. The Apex Court in case of Malluru Mallappa
(supra) held that the appellate proceedings being
the continuity of the suit, the request on the
part of the only surviving heir of Mr. Kantilal
Patel seeking to quash and set aside the decree
passed on 30. 04. 2005 in Special Civil Suit No.
149 of 2005 under Order 23 of the Code of Civil
Procedure can be surely accepted. As mentioned
hereinabove, the plaintiff is a dominus litis,
the parties which are claiming to have their
respective rights are all independently pursuing
their rights based on the respective agreement
from the year 2011, 2012, 2013 and 2018. Their
applications for interim injunction are also
pending. The injunction applications moved by the
society in their suits of the year 2013 also are
directed to be once again heard in wake of
impleadment of M/s. Jalaram Developers and Mr.
Talati as the party defendants.
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38. It is also noteworthy that the societies in all
its five suits have called for quashing and
setting aside the compromise decree on the
basis of the same being fraudulent. It is also
not surprising that such allegations are made as
the only person, who represented the society was
the accountant, who was an accountant of Mr.
Kantilal Patel. The society was in complete dark
and therefore, it is litigating with Mr. Kantilal
Patel and his heir from the year 2013. From the
amount of consideration which is said to have
gone to the society, not a single penny has come
to its account. Moreover, the fraudulent
permission of the Registrar of the Societies was
concocted by Mr. Kantilal Patel for which not
only he, but his family members are till date
facing the criminal prosecution. The rights of
M/s. Jalaram Developers and Mr. Talati as
also of Mr. Kalpesh Patel are to be adjudicated
in appropriate proceedings and it is not for this
Court to evaluate the merits of those claims in
the present proceedings. Their objection to this
withdrawal is also quite intriguing when they are
fully aware of the serious allegations against
Mr. Kantilal Patel and one of them Mr. Divyang
Jha also in his suit had sought to question the
collusive decree passed in Special Civil Suit No.
149 of 2005. Moreover, the objection on the
ground that the order of status quo qua in the
suit property is directed to be maintained by the
learned Single Judge in Special Civil Application
No. 18816 of 2017 with allied matters with a
further direction that no party should change
the nature of the suit properties till the
trial Court decides the referred injunction
applications, which also would not mean that
there can be any fetter on the parties to
exercise its statutory rights to withdraw the
proceedings.
39. We must also take note of the fact that all
parties were before the Apex Court when this
declaration was made by the heir of the original
plaintiff Ms. Dolly Patel through her counsel
that she is giving up all her rights and the
decree passed in favour of Mr. Kantilal Patel, is
also sought to be quashed and set aside as a
consequence when the Apex Court permitted all the
parties concerned to work out their rights in the
different proceedings which are still pending. It
is for them to agitate their rights in respective
matters and this contention of maintenance of
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status quo in relation to the nature of the suit
property surely can be agitated in their
respective suit. The withdrawal of the suit does
not change the nature of the suit property.
39.1 At the same time, we are in agreement with
learned senior advocate, Mr. Anshin Desai that
doctrine of merger would not apply as urged by
the learned senior advocate, Mr. Oza as nothing
has been looked into by the Apex Court. The Court
choose not to accept any plea of merger for the
reason that the Apex Court has simply recorded
the statement of learned senior advocate, Mr. Oza
on behalf of his clients and permitted the
petitioners to withdraw the Special Leave
Petitions, as the sequitur thereto. And, the Apex
Court had left the parties to work out their
rights in the respective different proceedings,
which are pending, the theory of doctrine of
merger surely would not come into picture. The
serious allegation is made of the societies
having collusive relation with the heir of
deceased Mr. Kantilal Patel and one Mr. Divyang
Jha in the name of the society is sponsoring the
litigation. All these aspects are also open to be
agitated before the concerned Court. This Court
would choose not to go into the same. These being
the appeals and it is the right of the plaintiff
to withdraw the suit, the request on the part
of Mr. Talati, M/s. Jalaram Developer and Mr.
Kalpesh Patel to be impleaded as the parties in
these appeals has come for the first time after
it was declared by the original plaintiff through
her learned Counsel before the Apex Court. Thus,
M/s. Jalram Developers and Mr. Talati have
approached this Court for impleadment in a suit
for a gap of more than seven to ten years.
39.2 The Apex Court in case of H. S. Goutham (supra)
in para 41 has held thus:
“41. Now, so far as the objection raised on
behalf of the appellant herein that the
appeal before the High Court against a
consent decree was not maintainable is
concerned, the same has no substance. The
High Court has elaborately dealt with the
same in detail and has considered the
relevant provisions of the Code of Civil
Procedure, namely, Section 96, Order XXIII
Rule 3, Order XLIII Rule 1 (m) and order
XLIII Rule 1A(2). It is true that, as perPage 24 of 46
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Section 96(3), the appeal against the
decree passed with the consent of the
parties shall be barred. However, it is
also true that as per Order XXIII Rule 3A
no suit shall lie to set aside a decree on
the ground that the compromise on which the
decree is based was not lawful. However, it
is required to be noted that when Order
XLIII Rule 1(m) came to be omitted by Act
104 of 1976, simultaneously, Rule XLIII
Rule 1A came to be inserted by the very Act
104 of 1976, which provides that in an
appeal against the decree passed in a suit
for recording a compromise or refusing to
record a compromise, it shall be open to
the appellant to contest the decree on the
ground that the compromise should or should
not have been recorded. Therefore, the High
Court has rightly relied upon the decision
of this Court in Banwari Lal v. Chando
Devi,AIR 1993 SC 1139 (para9) and has
rightly come to the conclusion that the
appeal before the High Court against the
judgment and decree passed in O.S. No. 3376
of 1995 was maintainable. No error has been
committed by the High Court in holding so.”
39.3 The Apex Court in case of Vidur Impex ( supra)
has already held that impleadment, if is sought
after the undue delay, the same can be declined.
39.4 It is thus well settled that in an appeal against
the decree passed in a suit for recording a
compromise, it is open for the appellant to
contest that the compromise should not have been
recorded. The law is clear that the right of
plaintiff to withdraw the suit is unconditional
and absolute, unless of course, crystallised
rights are noticed of the third parties.
39.5 This Court is conscious of the fact that it is a
case of unconditional withdrawal of the suit by
the plaintiff under Order 23 Rule 1 of the Code
of Civil Procedure and not of setting aside the
consent decree under Order 23 Rule 3 of the Code
of Civil Procedure. It is surely not the case
that the plaintiff is withdrawing the suit
pursuant to any compromise arrived at with the
defendant. It is a case of an unconditional
withdrawal of the suit by exercising the
statutory right. The order of status quo granted
by this Court also is incapable of taking away
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the right of the plaintiff to withdraw the suit.
39.6 It is also to be noted that the compromise decree
arrived at purportedly between Mr. Patel and the
society by putting up a face of his accountant,
who was his own man and this collusive decree is
the reason of plethora of litigations for such a
protracted period. The subsequent dealing of Mr.
Kantilal Patel and involving other parties also
by entering into the agreements, again are
required to be scrutinized at the hands of the
competent Court to decide as to whether they are
of speculative in nature. However, the fact
remains that the agreement arrived at between Mr.
Kantilal Patel and Mr. Kalpesh Patel appears to
be in breach of the status quo order dated 28.
03. 2018. He is stranger to the litigation
between the heir of Mr. Kantilal Patel and the
societies and there is no transfer of interest in
his favour. Ms. Dolly Patel is disputing the
alleged agreement executed with him. Even without
trusting her words, by noticing her objections in
the impleadment, the sheer fact of his having
filed a separate suit to enforce agreement with
Ms. Dolly Patel, he has, when taken a recourse to
the remedy, cannot be permitted to take any
objection and his such objection for the
withdrawal is not found sustainable, neither can
he be permitted to be impleaded as the party in
appeal nor can his objection to withdrawal of the
suit be sustained.
39.7 Some of the decisions, which he has sought to
press into, for allowing him to be impleaded as
party, shall need to be dealt with.
(1) In case of A. Nawab John and others vs. V. N.
Suramaniyam, reported in ( 2012) 7 SCC 738,
this decision permits the transferee
pendente lite to be allowed to be joined
liberally. However, it is a general
principle of joinder of the party where a
purchaser ( owner) pendente lite
was permitted to be joined, but in a very
peculiar facts of the instant case, this
decision will not apply.
(2) In case of Premchand J. Panchal Vs.
Shahjahabanu Liyakatkhan Pathan & Ors. ,
reported in ( 2012) 2 GLR 1121 where the
party is seeking to implead itself pendente
lite was on account of his lack of
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knowledge of the pending suit of the
purchaser, but the ratio is well laid down,
however, the same would not apply in his
case.
39.8 Here, Ms. Dolly Patel, the heir of Mr. Kantilal
Patel, is withdrawing the suit even though she
has acquired the interest in the suit property.
This withdrawal would be governed under Order 23
Rule 1 of the Code of Civil Procedure. Mr.
Kalpesh Patel was never a party to the suit, his
very existence as a party interested in the
property was not there when the suit was decreed,
even if, such interest had accrued over a period
of time. His own litigation would not prejudice
his right by way of a present withdrawal. He
being the third party will not have this right to
object to the same.
40. We notice that couple of the decisions have been
pressed into service, which say that agreement
which transfers right to receive fruits of
litigation are valid in law.
40.1 In case of Valluri Ramanamma vs Marina
Viranna, reported in 1931 TLW ( 33) 757 is the
judgment which deals with the legal proposition
that the agreement which is speculative in nature
and the litigation if is purchased for a pittance
of money is unconscionably and extortionate
agreement. Such an agreement is champertous and
void as per Section 23 of the Indian Contract
Act.
40.2 In the case of Kedar Lal vs. Babu Lal Vyas and
others, reported in ( 2003) 9 SCC 624, the Apex
Court has held that the agreement which transfers
the right to receive fruits of litigation is
valid in law. Likewise, the decision of Amirtham
Kudumbah vs. Sarnam Kudumbah, reported in ( 1991)
3 SCC 20 speaks of a right of a minor to
challenge the voidable transfer made by the
guardian.
40.3 In case of Union of India vs. Shri Sharda Mills,
reported in 1972 ( 2) SCC 877 the Apex Court held
at paragraph No. 51 that a mere right to sue
cannot be transferred as that would offend the
rule of champerty and maintenance.
41. It prima facie appears that the agreement is of
getting a share in the property at the end of the
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litigation where Mr. Kalpesh Patel has undertaken
to fund and manage the entire litigation
pertaining to the property. This Court would not
choose to opine as to whether this would amount
to the speculative nature of agreement or not,
since that may prejudice the rights of the
parties in their respective litigation. It will
not be necessary for referring to other
decisions.
42. So far as Mr. Talati and M/s. Jalaram Developers
are concerned, some of these decisions which they
are relying upon are already discussed and they
are not be reiterated.
43. The Court needs to deal with a few of these
decisions to hold why they would not come to the
rescue of the third parties, which have pressed
into service, in relation to the request to
implead itself as a party.
(1) In case of Suresh Kumar Bansal vs. Krishna
Bansal and another, reported in (2010) 2
SCC 162 the impleadment application was
filed on the basis of a will in a rent
suit. The trial Court rejected the same on
the ground that the will did not appear to
be genuine. The impleadment was permitted
by the Apex Court subject to the outcome of
probate proceedings. There can be no
dispute with regard to the impleadment of
the 3rd party when its interest lies in the
suit properties.
44. A strong contention raised against the withdrawal
is conduct of the plaintiff, as according to the
3rd party, the respondent is not the plaintiff.
The trial Court is required to deal with all
these issues and this Court may not allow such
withdrawal. At the best, the Court can send it
back to the trial Court and not to consider the
request. The affidavit also is not to be treated
according to the 3rd party as an application as
these are appeals and not a writ petition. The
volition of withdrawal, at this stage, is only to
overcome the decision of the learned Single
Judge.
45. By filing an affidavit, request of withdrawal is
made and this court cannot be oblivious of the
fact that the original plaintiff has passed away
and the respondent is the heir if Mr. Kantilal
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Patel. Here is not the case of two parties having
compromised seeking to regale out of the same nor
that if matter is sent to the trial court
concerned, those parties are to contest these
issues. Here is a clear case of obtaining the
compromise decree by perpetrating fraud upon the
court and the State instrumentalities and the
fruits of such unpalatable and unsustainable
decree having been enjoyed by also getting
registered sale deeds executed of land of
societies. Therefore, with such gross facts, when
the heirs of the deceased volunteers to withdraw,
no valid factor exists to deny such withdrawal.
In the process, this heir if has chosen to take
advantage by opportunistic tendencies, by process
of law, the same needs to be established.
46. xxx xxx xxx.
46.1 xxx xxx xxx.
47. xxx xxx xxx.
48. xxx xxx xxx.
48.1 xxx xxx xxx.
49. xxx xxx xxx.
49.1 xxx xxx xxx.
50. xxx xxx xxx.
51. xxx xxx xxx.
52. xxx xxx xxx.
53. xxx xxx xxx.
53.1 xxx xxx xxx.
54. xxx xxx xxx.
55. xxx xxx xxx.
55.1 xxx xxx xxx.
55.2 xxx xxx xxx.
55.3 xxx xxx xxx.
56. xxx xxx xxx.
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57. In this background, we are of the clear opinion
that this all has happened on account of
dishonest act on the part of Mr. Kantilal Patel
and some of his accomplices. However, his heir
Ms. Dolly Patel, whose role, at various stages,
has been questioned, if has chosen to withdraw
the suit simpliciter, which is the root cause of
all these disputes and protracted litigations,
with the pendency of Criminal Case against Ms.
Dolly Patel and her family as well as against
others, the request for withdrawal can surely be
permitted, as an appeal being the continuity of
the suit proceedings under Order 23 Rule 1 of the
Code of Civil Procedure. Objections to such
withdrawal may not be sustained.
58. Resultantly, the so called consent decree dated
30. 04. 2005 passed in Special Civil Suit No. 149
of 2005 is hereby quashed and set aside in wake
of this withdrawal with all consequential effect
of subsequent steps pursuant to the decree also.”
20. In view of above observation made by the Division
Bench of this Hon’ble Court in First Appeal
No.1827/2021, as quoted above, it is clear that
the rights of the third party have already been
crystallized by the Division Bench and the same
has been confirmed by the Hon’ble Supreme Court in
the SLP preferred by the third party. On careful
examination of the findings given by the Division
Bench, it has been held that third party has
independent remedy and that their rights are not
prejudiced by the withdrawal of the suit and the
status quo order granted by the Court continues to
operate but it does not restrict the plaintiff’s
statutory right to withdraw the suit, therefore,
the said decision does not set a new precedent but
applies established principle regarding the
plaintiff’s right to withdraw the nature of
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champertous agreements, and third party
impleadment.
21. At this stage, a useful reference can be made to
the Judgment of this Hon’ble Court delivered in
Manoramya Resorts and Hotels Pvt. Ltd. (supra),
upon which reliance has been placed by learned
Senior Counsel, Mr. Soparkar, wherein the
Coordinate Bench of this Hon’ble Court has
observed as under,
“14.1 In the case of Anil Dinmani (supra), the Bombay
High Court while considering Order 23 Rule 1 CPC
opined that as soon as an application is filed,
the withdrawal of the suit is complete. Such
withdrawal is not dependent on the court’s order.
Paragraph no. 3 of the order of the Bombay High
Court reads as under:
“3. Order XXIII. r. 1 of the Code of Civil
Procedure permits the plaintiff at any time
after the institution of the suit to
abandon the suit or abandon a part of the
claim in the suit against all or any of the
defendants. No permission of the Court is
necessary for the plaintiff to
unconditionally abandon his claim or any
part of his claim against all or one or
more of the defendants. Abandonment is
complete as soon as the plaintiff informs
the Court. No order of the Court is
necessary though the Court often passes
formal order recording the abandonment. In
this connection reference may be made to
the decision of the Apex Court in Shiv
Prasad v. Durga Prasad wherein the Court
observed in paragraph No. 12 of the
Judgment as follows:
“Every applicant has a right to
unconditionally withdraw his application
and his unilateral act in that behalf is
sufficient. No order of the Court is
necessary permitting him to withdraw the
application. The Court may take a formal
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dependent on the order of the Court. The
act of withdrawal is complete as soon as
the applicant intimates the Court that he
withdraws the application.””
14.3 In the present case, the objector is not even a
defendant. She has filed an application to be
joined as a defendant on the basis of an MOU
entered into in her favour by Mr. Ashish Patel.
Subsequently since Mr. Ashish Patel entered into
an MOU dated 01.02.1996 and 20.12.2006 with the
plaintiffs of Special Civil Suit No. 303 of 1995
and the financial arrangements are settled, these
MOUs have been substantially challenged by the
sole petitioner by way of a separate substantial
suit being Special Civil Suit No. 64 of 2007 in
the Civil Court, Gandhinagar to declare these
MOUs as forged and fabricated. The stand of Ms.
Tina Mehta that the MOUs are fabricated and
backdated is the subject matter of the
proceedings of SCS No. 64 of 2007. No proceedings
have been initiated for specific performance of
MOU dated 05.04.1999. In these facts, the
objector – intended defendant has filed a
separate suit which is pending. In the earlier
part while considering the privity of contract
between the plaintiffs and the objector in such
circumstances, she has no locus to object to the
suits being withdrawn. In fact Mr. Thakore has
during the course of submissions conceded that
there is no objection if Koteshwar Trust –
plaintiff of Special Civil Suit No. 302 of 1995
is permitted to withdraw the suit, however, the
plaintiff of Special Civil Suit No. 303 of 1995 –
Manoramya Resorts cannot be permitted to do so.
For the reasons, I find that even for Special
Civil Suit No. 303 of 1995, the petitioner cannot
object to the suit being withdrawn.”
22. Thus in view of the aforesaid decision, it is
clear that every applicant has a right to
unconditionally withdraw his application, for
which, no order of the Hon’ble Court is required
permitting him to withdraw the said application
and on submission of such application, the Hon’ble
Court may pass a formal order disposing of the
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said application as withdrawn. It is required to
be noted that earlier the suit itself had been
withdrawn with all consequential benefits and at
that point of time, very third party had made an
attempt to join them as party respondent, which
the Division Bench had not accepted, therefore,
they had approached the Hon’ble Supreme Court
raising all contentions available to them and
despite the said fact, the Hon’ble Supreme Court
had turned down their request, copies of memo of
said SLP is produced on record. Therefore when the
rights of the party has already been decided and
crystallized and base itself is not available, in
that event, again it cannot be permitted,
otherwise, it would cause unnecessary harassment
to a person, who is seeking unconditional
withdrawal. Over and above that, main writ
petitions have been preferred challenging the
revenue proceedings, wherein entries have been
cancelled. It is, therefore, required to be noted
that as stated above, on the basis of the
settlement arrived at between the parties, suit
itself is already withdrawn, therefore, base
itself is not available and there is no bar to
grant permission for the withdrawal of the
petition when the settlement is arrived at between
the parties.
23. At this stage, I would like to refer to and rely
upon the decision of this Hon’ble Court in case of
Narharibhai Chaturbhai Patel (supra), upon which
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reliance has been placed by learned advocate, Mr.
Patel, wherein this Hon’ble Court has made
observations in Paragraph Nos.19, 20 and 21, which
read as under,
“19. It also required to be noted that if the
plaintiff has settled his dispute with the
original defendant and if the plaintiff wants to
withdraw the suit unconditionally, the court has
no jurisdiction to refuse such unconditional
withdrawal, unless there is any counter claim or
set-off claimed by the defendant in the said
suit.
20. In the instance case, there is no counter claim
made by the defendant or set off claimed by the
defendant in the said suit preferred by the
plaintiff. It is pertinent to note that if it is
the suit for partition, it would stand on the
different footing. In such partition suit, the
cause of action of the plaintiff and some of the
defendants and in such a case, Court can permit
such defendants to be transposed as plaintiffs
but that is not the situation in the present
case. In my view, therefore, the trial Court has
committed error of jurisdiction by refusing such
unconditional withdrawal of the suit. When the
plaintiff wants to withdraw the suit, the conduct
of the plaintiff was not relevant for permitting
him to withdraw the suit if he wanted to withdraw
the suit unconditionally. It is required to be
noted that question regarding whether the
respondent no.1 is required to be transposed as
plaintiff under Order 23 Rule 1(A) of the Code
arose subsequently for determination and the
first question, which requires consideration is
whether the plaintiff can be permitted to
withdraw the suit unconditionally and if it is
held that the plaintiff is entitled to withdraw
the suit, naturally, there is no question of
permitting the defendant/respondent to be
transposed as the plaintiff.
21. As pointed out earlier, respondent no.1 herein,
who wanted to be transposed in the present suit
as the plaintiff can raise all the available
contents in its own suit being Special Civil Suit
No. 139 of 2005 including the admission if any
made by the present plaintiff in the suit in
question. Therefore, the trial court has failed
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to exercise its jurisdiction by not permitting
the plaintiff to withdraw the suit
unconditionally and has exercised its
jurisdiction with malafide irregularity, and
therefore, the order in question is required to
be quashed by this Court by exercising the powers
under Article 226 and Article 227 of the
Constitution of India. The plaintiff of the
original Regular Civil Suit No. 91 of 2001 cannot
be compelled to continue his suit even if he
wants to withdraw it unconditionally by
permitting the defendant to be transposed as the
plaintiff alongwith the original plaintiff.
24. I would also like to refer to and reply upon the
decision of this Hon’ble Court in case of
Dineshbhai Mohanbhai (supra), upon which reliance
has been placed by learned advocate, Mr. Patel,
wherein this Hon’ble Court has made observations
in Paragraph Nos.49 and 50, which read as under,
“49. I have considered the argument of both the sides.
The issue involved in this matter is very simple,
whether the plaintiff has absolute right to
withdraw the suit unconditionally and under what
circumstances the Court can refuse such
withdrawal. In my view, the Trial Court has
committed error of jurisdiction by not permitting
the original plaintiffs to withdraw their suit
unconditionally. It is required to be noted that
it cannot be said that there is common cause of
action so far as rights of original plaintiffs
and third party are concerned. It cannot be said
that there is common interest of the plaintiffs
and the defendants, like common interest of
parties in a partition suit. In my view, simply
because the plaintiffs have made certain
admission in the suit, that itself, cannot be
made the basis for refusing the withdrawal of the
suit, if the plaintiffs wanted to withdraw the
suit unconditionally. The applicant-third party
can rely upon such admissions as per the
provisions of the Indian Evidence Act, in the
suits filed by them, which are still pending.
50. It is also required to be noted that the third
party applicants are not even defendants in the
present suit and for the first time, they gave an
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application Exh.57, requesting the Court to
permit them to be joined as co-plaintiffs in the
suit. If the respondents No.2 to 5 have any
independent right, naturally they can pursue the
same in the suits, which they have already filed.
So far as argument of Mr.A.J.Patel regarding Sec.
15 (b) of the Specific Relief Act is concerned,
which provides that the specific performance of
the contract should be obtained by the
representative in interest of the principal of
any party thereto, the said aspect can be
highlighted by the applicants in the suits, which
they have already filed and which are pending.
The question whether there is any assignment in
favour of the applicants, is a question which is
required to be decided in the suits filed by them
and withdrawal of the present would not in any
way prejudice the rights of third party-
applicants and the suits filed by the third
party-applicants are required to be decided on
their own merits and the applicants can raise all
the points available to them in those suits.
25. Coming back to the present case, it appears that
here in the present case, the dispute pertains to
cancellation of the entries mutated on the basis
of the registered sale deed, which were taken into
suo motu. It is required to be noted that as
stated above, the applicants herein had entered
into sale transaction with 5 – Gayatrinagar
Cooperative Housing Societies and as the sale deed
was not executed, suit for specific performance
was filed, wherein settlement was arrived at and,
thereafter, sale deeds have been executed in
favour of the applicants and, thereafter, they
came in possession of the land in question.
However in none of the above proceedings, third
party, who is sought to be impleaded as party
respondent in the main writ petitions, was not
there. Over and above that, as stated above, in
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the plaint instituted by the applicants herein,
they have also tried to implead themselves in
those proceedings, however, it was not permitted,
against which, writ petition was preferred before
this Hon’ble Court, which was also rejected,
therefore, SLP was also preferred, which was also
dismissed. Therefore having failed in all earlier
attempts, that too, when the rights of the third
party have already been decided and crystallized
by the Hon’ble Court, one more attempt is being
made to allow them to enter into the proceedings
again, which in my considered opinion, cannot be
permitted.
26. At this stage, I would like to refer to provision
of Section 12 of the Code of Civil Procedure, 1908
(hereinafter referred to as “CPC” for sake of
brevity), which provides that where a plaintiff is
precluded from instituting a further suit in
respect of a particular cause of action then, he
shall not be entitled to institute a suit in
respect of that cause of action in any court to
which the CPC applies. The rationale underlying
this provision is the prevention of (i) endless
litigation; (ii) wastage of court’s precious time;
and (iii) abuse of legal procedure by litigants.
The Interest reipublicae ut sit finis litium i.e.
it is in the interest of the society that
litigation comes to an end. Therefore, if a plaint
attracts Section 12 CPC, it is automatically not
maintainable. However, like almost every rule of
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law this one also has exceptions. One such
exception is provided in sub-rule (3) of Order 23
Rule 1 CPC[2]. As per sub-rule (3), the court
concerned is empowered, upon an application, to
allow a plaintiff to withdraw his defective suit,
take necessary steps to cure that defect and then
institute a fresh suit on the same cause of action
and claiming same reliefs. This provision is quite
important since in its absence, at a later stage
of trial the maintainability of suit would be
questioned by the defendant which could
potentially make the entire process of civil trial
infructuous, thereby robbing the plaintiff of his
legal rights and remedies and leading to wastage
of the court’s time and resources as well. Further
with the passage of time, Order 23 Rule 1(3) and
its nuances have been interpreted by the Hon’ble
Supreme Court and other High Courts across the
country, sometimes leading to contradicting
judicial opinions as well.
27. Thus here in the present case, what is sought to
be claimed by the applicants is withdrawal of the
proceedings pending before this Hon’ble Court,
therefore, the issue is whether the withdrawal can
be permitted on mere application filed or the
aspect of rights acquired under the decree, need
to be examined. In the above background, the
provisions of the Code so also the facts are
required to be considered. Relevant would be Order
23, Rule 1 of the Code, which provides for
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withdrawal of suit or abandonment of part of
claim. It states that any time, after the
institution of the suit, the plaintiff may as
against all or any of the defendants, abandon his
suit or abandon a part of his claim. Sub-rule (1)
of Rule 1 of Order 23 gives a liberty in favour of
the plaintiff to withdraw the suit. To appreciate
the controversy germen in the application, it is
apposite to refer Order 23 Rule, which reads as
under :-
“1. Withdrawal of suit or abandonment of part of
claim.–
(1) At any time after the institution of a suit, the
plaintiff may as against all or any of the
defendants abandon his suit or abandon a part of
his claim:
Provided that where the plaintiff is a minor or
other person to whom the provisions contained in
rules 1 to 14 of Order XXXII extend, neither the
suit nor any part of the claim shall be abandoned
without the leave of the Court.
(2) An application for leave under the proviso to
sub-rule (1) shall be accompanied by an affidavit
of the next friend and also, if the minor or such
other person is represented by a pleader, by a
certificate of the pleader to the effect that the
abandonment proposed is, in his opinion, for the
benefit of the minor or such other person.
(3) Where the Court is satisfied,–
(a) that a suit must fail by reason of some
formal defect, or
(b) that there are sufficient grounds for
allowing the plaintiff to institute a fresh
suit for the subject matter of suit or part
of a claim,it may, on such terms as it thinks fit
grant the plaintiff permission to withdraw
from such suit or such part of the claimPage 39 of 46
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with liberty to institute a fresh suit in
respect of the subject-matter of such suit
or such part of the claim.
(4) Where the plaintiff–
(a) abandons any suit or part of claim under sub-
rule (1), or
(b) withdraws from a suit or part of a claim
without the permission referred to in sub-
rule (3),
he shall be liable for such costs as the
Court may award and shall be precluded from
instituting any fresh suit in respect of
such subject-matter or such part of the
claim.
(5) Nothing in this rule shall be deemed to authorise
the Court to permit one of several plaintiffs to
abandon a suit or part of a claim under sub-rule
(1), or to withdraw, under sub-rule (3), any suit
or part of a claim, without the consent of the
other plaintiff.
3. Compromise of suit.–
Where it is proved to the satisfaction of
the Court that a suit has been adjusted
wholly or in part by any lawful agreement
or compromise 1 in writing and signed by
the parties] or where the defendant
satisfied the plaintiff in respect to the
whole or any part of the subject-matter of
the suit, the Court shall order such
agreement, compromise or satisfaction to be
recorded, and shall pass a decree in
accordance therewith [so far as it relates
to the parties to the suit, whether or not
the subject matter of the agreement,
compromise or satisfaction is the same as
the subject-matter of the suit:
Provided that where it is alleged by one
party and denied by the other that an
adjustment or satisfaction has been arrived
at, the Court shall decide the question;
but not adjournment shall be granted for
the purpose of deciding the question,
unless the Court, for reasons to be
recorded, thinks fit to grant suchPage 40 of 46
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adjournment.”
28. Reading of sub-rule (1) of Rule 1 of Order 23 of
the Code suggest that it gives liberty to the
plaintiff at any time after the institution of the
suit against all or any of the defendants, to
abandon the suit or part of the claim. So far as
Rule 3 is concerned, the same provides for
compromise of the suit and satisfaction of the
Court, followed by passing of decree in accordance
therewith. Here in the present case, as can be
seen from the facts narrated above coupled with
the submissions canvassed by learned advocates for
the parties, the dispute pertains to rival parties
have already been amicably settled, therefore,
they have prayed for withdrawal of the
proceedings. However against the said withdrawal
of the proceedings, third party is having
objection despite the fact that their rights have
already been crystallized. However as can be seen
from the detailed observations and discussion made
by the Division Bench while passing judgment dated
22.09.2022 in First Appeal No.1827 of 2021 and
allied matters that third party can be permitted
to establish their independent rights before the
respective courts in their civil litigation, which
they may establish at future stage. Over and above
that, it is required to be noted that here in the
present proceedings, third party has filed
applications for joining them as party respondents
in main writ petitions, which have not been yetPage 41 of 46
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decided. However at the time of deciding the
applications for withdrawal of the proceedings,
their applications for impleadment are decided
simultaneously, therefore it can be said that they
have already availed opportunities to address this
Court on merit of the matter and as mentioned
above, when they are already having their
independent rights to pursue the remedy, their
impleadment may not be necessary.
29. At this stage, I would like to refer to and rely
upon the decision of the Hon’ble Supreme Court in
case of Sugandhi (dead) by LRs & Anr. Vs. P
Rajkumar Rep by His Power Agent Imam Oli, reported
in (2020) 10 SCC 706, wherein the Hon’ble Supreme
Court has observed as under,“[9] It is often said that procedure is the handmaid
of justice. Procedural and technical hurdles
shall not be allowed to come in the way of the
court while doing substantial justice. If the
procedural violation does not seriously cause
prejudice to the adversary party, courts must
lean towards doing substantial justice rather
than relying upon procedural and technical
violation. We should not forget the fact that
litigation is nothing but a journey towards truth
which is the foundation of justice and the court
is required to take appropriate steps to thrash
out the underlying truth in every dispute…..”
(emphasis supplied)
30. It would also profitable to rely upon the decision
of the Hon’ble Apex Court in the case of Ashok
Kumar Karla Vs. Wing CDR Surendra Agnihotri &
Ors., reported in (2020) 2 SCC 394, wherein it has
been observed as under,Page 42 of 46
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“7. At the outset, there is no gainsaying that the
procedural justice is imbibed to provide further
impetus to the substantive justice. It is this
extended procedural fairness provided by the
national courts, which adds to the legitimacy and
commends support of general public. On the other
hand, we must be mindful of the legislative
intention to provide for certainty and clarity.
In the name of substantive justice, providing
unlimited and unrestricted rights in itself will
be detrimental to certainty and would lead to the
state of lawlessness. In this regard, this Court
needs to recognize and harmoniously stitch the
two types of justice, so as to have an effective,
accurate and participatory judicial system.
14. Before we proceed further, we deem it appropriate
to note that any provision under the procedural
law should not be construed in such a way that it
would leave the Court helpless [refer to Salem
Advocate Bar Association Case (supra)]. In fact a
wide discretion has been given to the civil court
regarding the procedural elements of a suit. As
held by this Court, procedural law is not to be a
tyrant but a servant, not an obstruction but an
aid to justice.
18. As discussed by us in the preceding paragraphs,
the whole purpose of the procedural law is to
ensure that the legal process is made more
effective in the process of delivering
substantial justice. Particularly, the purpose of
introducing Rule 6A in Order VIII of the CPC is
to avoid multiplicity of proceedings by driving
the parties to file separate suit and see that
the dispute between the parties is decided
finally. If the provision is interpreted in such
a way, to allow delayed filling of the counter-
claim, the provision itself becomes redundant and
the purpose for which the amendment is made will
be defeated and ultimately it leads to flagrant
miscarriage of justice. At the same time, there
cannot be a rigid and hyper technical approach
that the provision stipulates that the counter
claim has to be filed along with the written
statement and beyond that, the Court has no
power. The Courts, taking into consideration the
reasons stated in support of the counter claim,
should adopt a balanced approach keeping in mind
the object behind the amendment and to subserve
the ends of justice. There cannot be any hard and
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fast rule to say that in a particular time the
counterclaim has to be filed, by curtailing the
discretion conferred on the Courts. The trial
court has to exercise the discretion judiciously
and come to a definite conclusion that by
allowing the counterclaim, no prejudice is caused
to the opposite party, process is not unduly
delayed and the same is in the best interest of
justice and as per the objects sought to be
achieved through the amendment. But however, we
are of the considered opinion that the defendant
cannot be permitted to file counterclaim after
the issues are framed and after the suit has
proceeded substantially. It would defeat the
cause of justice and be detrimental to the
principle of speedy justice as enshrined in the
objects and reasons for the particular amendment
to the CPC.
50. It is well settled that procedural rules should
not be interpreted so as to defeat justice,
rather than furthering it. This is because
procedural law is not meant to serve as a tyrant
against justice, but to act as a lubricant in its
administration. Thus, when Courts set out to do
justice, they should not lose sight of the end
goal amidst technicalities. In some cases, this
means that rules that have traditionally been
treated as mandatory, may be moulded so that
their object and substantive justice is not
obstructed. It would be apposite to remember that
equity and justice should be the foremost
considerations while construing procedural rules,
without nullifying the object of the Legislature
in totality……”
(emphasis supplied)
31. The conjoint reading of the aforesaid decisions
and its ratio would clearly indicate that any rule
of procedure so prescribed under CPC is handmaid
of justice, thereby, technical hurdle is not to be
allowed to come in the way of the Court while
doing substantial justice unless procedure
violation cause serious prejudice to the advisory
party. It is also settled legal position that any
provision under procedure of law should not be
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construed in such a way that it would leave the
Court helpless. Thus, when the Court requires to
interpret any procedural law as provided under
CPC, such factors requires to be taken into
account, thereby, it can advance substantial
justice to the parties albeit, by doing so not to
cause any injustice to advisory party.
32. At this stage, I would like to reiterate that
while passing judgment dated 22.09.2022 passed in
First Appeal No.1827/201, the Division Bench of
this Hon’ble Court has also considered the
provision of Order 23 Rule 1 of the Code of Civil
Procedure, which deals with the withdrawal of
suits. The said provision allows a plaintiff to
withdraw a suit or abandon a part of their claim.
However, if they withdraw without the court’s
permission to file a fresh suit on the same cause
of action, they are barred from instituting any
fresh suit on the same subject matter. However in
the present case on hand, as discussed above, the
applicants have prayed for withdrawal of the
proceeding unconditionally on the basis of the
settlement arrived at between the parties,
therefore, it can be permitted to be allowed
despite having objection of third party, whose
rights have already been crystallized.
33. Therefore in view of the aforesaid observations,
discussions and reasons and in view of the
provision of the Order 23, Rule 1 of the CPC, such
withdrawal is permissible. Therefore without
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entering into merits or de-merits of the matter, I
am inclined to allow the applications filed for
withdrawal of the main proceedings. Therefore, the
present applications deserve to be allowed.
34. Accordingly, the present applicants seeking
withdrawal of main writ petitions stand allowed as
prayed for. Therefore main writ petitions being
Special Civil Application No.7670/2013 and Special
Civil Application No.7671/2013 are permitted to be
withdrawn. Connected application/s, if any,
stand/s disposed of.
35. In view of the fact that in the applications for
withdrawal of the proceedings preferred by the
applicants – original petitioners, submissions
have already been made, therefore, no order is
required to be passed thereon. Accordingly, Civil
Application No.1/2013, Civil Application No.1/2018
and Civil Application No.2/2018 all three in
Special Civil Application No.7670/2013 as well as
Civil Application No.1/2018 and Civil Application
No.2/2018 both in Special Civil Application
No.7671/2013 are hereby disposed of accordingly.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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