Smt. Premwati Devi Vs. State Of U.P. & Another

Allahabad High Court (Single Judge)

WRIT - A, 1716 of 2015, Judgment Date: May 04, 2015

Having considered the aforesaid submissions, this court finds that the application to withdraw the suit in appeal has been filed under Order 23 Rule 3 CPC, which was rightly held to be not maintainable as there was no compromise between the parties. Even otherwise, the suit has been dismissed on merits and also applications for amendment have been rejected. 

                                        HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. - 2 
Case :- MATTERS UNDER ARTICLE 227 No. - 1716 of 2015 
Petitioner :- Smt. Premwati Devi 
Respondent :- State Of U.P. & Another 
Counsel for Petitioner :- Manish Chandra Tiwari,Desh Raj Kushwaha 
Counsel for Respondent :- C.S.C. 

Hon'ble Ashwani Kumar Mishra,J. 
An application in a pending appeal under section 96 CPC has been filed with the prayer to withdraw the same with liberty to institute a fresh suit. This application has been rejected by the appellate court. 
Learned counsel for petitioner submits that formal defect exists in framing of the suit, which was likely to result in dismissal of suit, and therefore, the prayer to withdraw the appeal with liberty to file a fresh suit was liable to have been granted.� 
Learned Standing Counsel, on the other hand, submits that suit was contested on merits and plaintiff has lost. Thereafter, two amendment have been filed, which have been rejected, whereafter this application has been filed. Submission is that filing of the application itself is with an intent to fill up lacuna and is not banafide. It is, therefore, contended that no interference in the matter is called for. 
Having considered the aforesaid submissions, this court finds that the application to withdraw the suit in appeal has been filed under Order 23 Rule 3 CPC, which was rightly held to be not maintainable as there was no compromise between the parties. Even otherwise, the suit has been dismissed on merits and also applications for amendment have been rejected. The remedy available for the petitioner was to have contested the matter, as per the provisions of the Code and filing of application to withdraw the suit during pendency of appeal, was not the appropriate remedy under the facts and circumstances of the present case. 
In such circumstances, this court refuses to interfere in the matter, leaving it open for the petitioner to pursue such other remedy, as may be available, on merits, in law. Petition, accordingly, fails and is consigned to records.� 
Order Date :- 4.5.2015/Ashok Kr.