Rajendra Prasad Gupta vs Prakash Chandra Mishra & Ors

RAJENDRA PRASAD GUPTA Appellant (s)

VERSUS

PRAKASH CHANDRA MISHRA & ORS. Respondent(s)

O R D E R

Heard learned counsel for the appellant and respondent

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

This Appeal, by special leave, has been filed against

the impugned judgment of the High Court of Allahabad dated

06.02.2004 passed in FAFO No.2103/2003.

It appears that the appellant 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. 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 application. The

second application had been dismissed and that order was

upheld by the High Court. Hence, this appeal by special

leave.

:1: The High Court was of 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stands dismissed as withdrawn even without any order on the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. Hence, the second application was

not maintainable. We do not agree.

Rules of procedure are handmaids of justice. Section

151 of the Code of Civil Procedure gives inherent powers to

the court to do justice. That provision has to be

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. There is no express bar in filing an application

for withdrawal of the withdrawal application.

In Narsingh Das v. Mangal 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 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, and we agree with this

view.

:2: Accordingly, we are of the opinion that the

application praying for withdrawal of the withdrawal

application was 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 merits,

expeditiously .

.....................J. (MARKANDEY KATJU)

.....................J. (GYAN SUDHA MISRA)

NEW DELHI;

JANUARY 12, 2011

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