RAJENDRA PRASAD GUPTA versus PRAKASH CHANDRA MISHRA & ORS.

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[2011) 1 S.C.R. 321

RAJENDRA PRASAD GUPTA v. PRAKASH CHANDRA MISHRA & ORS. (Civil Appeal No. 984 of 2006)

JANUARY 12, 2011 .

A

B

[MARKAN~EY KAT JU AND GYAN SUDHA MISRA, JJ.]

Code of Civil Procedure, 1908- s. 151 -Application for withdrawal of suit - During pendency of the application, plaintiff filed another application praying for withdrawal of the earlier c withdrawal application - Maintainability of the second application - Held: Application praying 'for withdrawal of the earlier withdrawal application was maintainable since there was no express bar in filing such an application - Section 151 gives inherent powers to the court to do justice - It has to be D interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted - Order of the High Court that once the application-for withdrawal of the suit was filed the suit stood dismissed as E withdrawn even without any order on the withdrawal application, and thus, the second application was not maintainable, cannot be accepted and is set aside .

. Narsingh Das v. Manga{ Dubey ILR 5 All 163 (1882) (FB); Raj Narain Saxena v. Bhim Sen and Ors. AIR 1966 F Allahabad 84 (FB) - approved ..

Case Law Reference:

ILR 5 All 163 (FB) (1882)

approved

Para 6

AIR 1966 Allahabad 84 FB approved

Para 7

CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 984

of 2006.

321

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H

322

SUPREME COURT REPORTS

[2011] 1 S.C.R.

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B

c

From the Judgment & Order dated 06.02.2004 of the High Court of Allahabad in first Appeal in Order No. 2103 of 2003.

S.S. Mishra, Rajkumar Parasher, Sibo Sankar Mishra for

the Appellant.

P.K. Jain, P.K. Goswami, Ashok K. Sharma, Praveen Kr. Mutreja, Sobodh Kumar, Goodwill lndeevar for the Respondents.

The following Order of the Court was delivered

ORDER

Heard learned counsel for the appellant and respondent

Nos. 1 to 3. No one appeared for respondent No. 4.

D

This Appeal, by special leave, has been filed against the impugned judgment of the High Court of Allahabad dated 6.2.2004 passed in FAFO No. 2103/2003.

It appears that the appellant was the plaintiff in Suit No. E 1301 of 1997 before the Court of Civil Judge (Junior Division) Varanasi. He filed an application to withdraw the said suit. Subsequently, it appears that 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 F application. The second application had been dismissed and that order was upheld by the High Court. Hence, this appeal by. special leave.

The High Court was of the view that once application for withdrawal of the suit is filed the suit stands dismissed as G withdrawn even without any order on the withdrawal application. Hence, the second application was not maintainable. We do not agree.

Rules of procedure are handmaids of justice. Section 151 H of the Code of Civil Procedure gives inherent powers to the

RAJENDRA PRASAD GUPTA v. PRAKASH CHANDRA MISHRA & ORS.

323

court to do justice. That provision has to be interpreted to mean A that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application..

B

In Narsingh Das v. Mangat Dubey, ILR 5 All 163 (FB) (1882), Mr. Justice Mahmood, the celebrated Judge of the Allahabad High Court, observed:-

"Courts are not to act upon the principle that every C 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 D presumed.

The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena v. Bhim Sen & others, AIR 1966 Allahabad 84 FB, and we agree with this E view.

Accordingly, we are of the opinion that the applic'atiO~ praying for withdawal of the withdrawal application was f maintainable. We order accordingly.

In the result, the impugned judgment of the High Court is

set aside and the Appeal is allowed. No costs.

The suit shall proceed and to be decided on merit,

expeditiously.

N.J.

Appeal allowed.

F

G