Bhuja Ram (Died) through L.Rs. and Others vs Tek Chand and Others

Alok Singh, J.—This application is moved u/s 151 CPC to withdraw/oral statement dated 15.10.2010 of the learned Counsel for the appellant and for recalling the order, which was recorded by this Court in the order dated 15.10.2003. Order dated 15.10.2003 reads as under:

Counsel for the appellants states that he is pressing this appeal qua respondents No. 1 to 4, 8 to 13, 17 and 20 only. He gives up all the other respondents as unnecessary. The appeal is, accordingly, dismissed qua the other respondents.

Learned Sr. Advocate Mr. R.S. Mittal assisted by Mr. Atul Gaur, Advocate argued that statement dated 15.10.2003 was given by him keeping in mind expedite hearing of the appeal. Mr. Mittal further stated that despite of dismissal of appeal by this Court vide order dated 15.10.2003 qua the other respondents as mentioned in the order, other respondents were represented before this Court by their Advocates. Mr. Mittal further stated that those other respondents were party in the SLP before the Apex Court challenging the judgment of this Court allowing the appeal vide order dated 25.2.2004. According to Mr. Mittal after remand from the Apex Court he should be permitted to withdraw his statement dated 15.10.2003 and appeal be heard on merit against all the respondents. He further stated that decree pursuant to judgment dated 25.2.2004 also mentions name of the respondents.

Mr. Mittal has placed reliance on the order dated 23.9.2004 passed by learned Single Judge of this Court in the matter of Dharam Singh v. Shrabati and Anr. in RSA No. 2084 of 1980 in support of his argument and stated that an application to withdraw the suit or appeal can be withdrawn at the subsequent stage.

Mr. Mittal further placed reliance on the judgment in the matter of Rameswar Sarkar Vs. State of West Bengal and Others, . Calcutta High Court in Rameshwar Sarkar (supra) in para No. 14 has held as under:

The scope of S.151 is very vide. Where there is no provision under the CPC prescribing any remedy, S.151 will apply. 0.23, R.1 provides withdrawal of a suit with or without liberty to file a fresh suit. There is no provision for getting an order passed on withdrawal application set aside or praying for withdrawal of an application for withdrawal of the suit. In such circumstances in our opinion, the Court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of its inherit power in a proper and suitable case.

Mr. Mittal further placed reliance on judgment of Patna High Court in the case of Jagarnath Keyal and Others Vs. Nagar Mull and Another, and argued that withdrwal application can be withdrawn at the subsequent stage.

Mr. S. K. Garg Narwana, learned Counsel for the respondents vehemently opposed the application and argued that statement given at Bar by learned Sr. Advocate cannot be withdrawn.

I find that appeal was not pressed by Mr. R.S. Mittal, Sr. Advocate assisted by Mr. Atul Gaur qua other respondents except Respondents No. 1 to 4, 8 to 13, 17 and 20 only. Appeal was directed to be dismissed against respondents No. 6, 7, 14, 15, 16, 18, 19 and 21 to 50.

On being asked Mr. Mittal fairly stated that the respondents against whom appeal is not pressed are also necessary parties and without them no partition can take place.

It is a settled principle of law that in a suit for partition, alleged share claimed by the plaintiff is always against all the coowners who are necessary parties and in the absence of any co-sharer decree of partition cannot be passed.

I have carefully examined judgments cited by Mr. Mittal learned Sr. Advocate appearing for the appellant. I am of the view that statement to withdraw/not press the appeal or suit can be withdrawn if statement was made under mis-representation or fraud. Ordinarily no statement given at the Bar by learned Advocate, that too Sr. Advocate, can be permitted to be withdrawn.

Mr. Mittal learned Sr. Advocate does not suggest that statement given by him on 15.10.2003 is outcome of any misrepresentation or fraud. Neither Calcutta High Court in the matter of Rameshwar Sarkar (supra) nor Patna High Court in the matter of Jagamarth Kayal (supra) suggest that statement given by learned Sr. Advocate withdrawing or not pressing the appeal qua certain respondents can be withdrawn at the subsequent stage, without pointing out any sufficient reason for withdrawal.

Since, initially present appeal was filed against all the respondents, hence name of all the respondents would be mentioned in the Decree-Sheet. Showing the name of all the respondents in Decree-Sheet does not give any right to the appellant to withdraw his statement.

As observed above, since decree was showing names of all the respondents, hence, they were rightly impleaded in SLP. No benefit can be derived by the appellant on this account also. Judgment passed by this Court allowing the appeal dated 25.2.2004 has already been set aside by Hon''ble Apex Court hence, appellant cannot take any benefit from the earlier judgment of this Court.

No sufficient ground is made out to withdraw the statement. Civil Miscellaneous application is, therefore, rejected.

By not pressing the appeal qua some of the respondents-coowners, learned Sr. Advocate has allowed the decree to attain finality qua those respondents. Decree of partition is not separable. Permitting the decree to attain finality qua some of the respondents would make present appeal not maintainable being barred by the principle of res judicata, Present appeal is, therefore, not maintainable, hence, is dismissed.

Remand by Hon''ble Apex Court does not mean that appeal has to be decided on merit even, if it has become not maintainable or has become infructuous.

As discussed hereinbefore present appeal against contesting respondents has become not maintainable by withdrawing the appeal against other contesting respondents. Appeal is, therefore, dismissed.