State Of Gujarat vs Natwarlal Pitambardas Patel

1 Since the issues raised in all the captioned miscellaneous civil applications are interrelated and the parties are also the same, those were heard analogously and are being disposed of by this common judgment and order.

2 The disposal of the Miscellaneous Civil Application No.3 of 2018 filed in the Special Civil Application No.19715 of 2015 shall govern the disposal of the connected applications too. In such circumstances, the Miscellaneous Civil Application No.3 of 2018 is treated as the lead matter.

3 Before I enter into the merits of this application, I must give a fair idea of the two main petitions i.e. the Special Civil Application No.19715 of 2015 and the Special Civil Application No.97 of 2016 respectively.

4 The Special Civil Application No.19715 of 2015 was filed by in all nine petitioners including the applicant herein. In the said petition, the prayers were as under:

"6A. The Hon'ble Court be pleased to issue a writ of prohibition or writ in the nature of prohibition or any other appropriate writ, order or direction, restraining the respondent State Authorities from nominating any Directors/appointing any Directors in the Board of Directors of Mehsana District Central Co­operative Bank Limited.

B. Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to restrain the respondent State Authorities from nominating any Directors/appointing any Directors in the Board of Directors of Mehsana District Central Co­operative Bank Limited.

C. Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to restrain any nominated Director/Director appointed by the State Authorities to vote at the elections of office bearers of Mehsana District Central Co­operative Bank Limited.

D. The Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."

5 The subsequent developments lead to filing of the Special Civil Application No.97 of 2016 by the very same set of petitioners including the applicant herein with the following prayers:

"6(A) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 26.11.2015 annexed at Annexure­N to this petition, passed by the custodian of the Mehsana District Central Co­operative Bank Ltd., co­opting two professional Directors Le the respondent nos. 6 and 7 in the Board of Directors of Mehsana District Central Co­operative Bank Limited.

6(AA)The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari quashing and setting aside the resolution of the State Government dated 28.12.2015 to subscribe to the share capital in the Mehsana District Central Cooperative Bank Limited and its consequential resolution dated 28.12.2015 to nominate the respondent NO.8 as its nominee be also be set aside which are annexed at Annexure­R collectively to this petition.

(B) The Hon'ble Court be pleased to issue a writ of certiorari or writ a in the nature of certiorari or any other appropriate writ, M direction or order quashing and setting aside the order passed by the State Authorities nominating a Director i.e respondent no. 8 herein, under Section­8O in the Board of Directors of Mehsana District Central Co­operative Bank Limited.

(C) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the elections of Chairman and Vice Chairman of Mehsana District Central Co­operative Bank Limited held on 29.12.2015 and be pleased to direct that fresh elections of Chairman and Vice­Chairman be held from amongst the 17 Directors i.e. 15 elected Directors, 1 representative of the Registrar and 1 representative of the Gujarat State Cooperative Bank, but excluding the 3 nominated and co­opted Directors within a stipulated time.

(D) Pending hearing and final disposal of the petition, the Hon'ble Court may be pleased to stay the execution, operation and implementation of order dated 26.11.2015 annexed at Annexure­N to this petition, passed by custodian co­opting two professional Directors i.e. the respondent nos.6 and 7 in the Board of Directors of Mehsana nos. 6 and 7 in the Board of Directors of Mehsana District Central Cooperative Bank Limited.

(DD) Pending hearing and final disposal of the petition, the Hon'ble Cort be pleased to stay the resolution dated 28.12.2015 of the State Government at Annexure­R collectively to this petition, to subscribe to the share capital in Mehsana District Central Cooperative Bank Limited.

(E) Pending hearing and final disposal operation and implementation of order Section­80 by the State Authorities nominating one Director in the Board of Directors of Mehsana District Central Cooperative Bank Limited.

(F) Pending hearing and final disposal of the petition, the Hon'ble Court may be pleased to stay the proceedings of election of Chairman and Vice­ Chairman of Mehsana District Central Co­operative Bank Limited, which was held on 29.12.2015.

(G) The Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."

6 Thus, the subject matter of this litigation has something to do with the Mehsana Development Central Cooperative Bank Limited. The challenge in the main petition i.e. the Special Civil Application No.97 of 2016 was to the order dated 26th November 2015 passed by the custodian of the Bank in co­opting two professional Directors i.e. the original respondents Nos.6 and 7 on the Board of Directors of the Bank. The petitioners also challenged the order passed by the State Government nominating one Director i.e. the original respondent No.8 under Section 80 of the Gujarat Cooperative Societies Act, 1961 on the Board of Directors of the Bank. The petitioners also prayed to quash and set aside the entire election of the Chairman and Vice Chairman respectively of the Bank held on 29th December 2015. The petitioners also prayed for a direction to hold that a fresh election of the Chairman and the Vice Chairman from amongst the seventeen Directors i.e. the fifteen elected Directors, one representative of the Registrar Cooperative Societies and one representative of the Gujarat State Cooperative Bank excluding the three nominated and co­opted Directors.

7 The two main petitions were being adjudicated by this Court.

8 On 24th December 2018, an important development took place and the said development led to passing of the following order by this Court:

"Special Civil Application No.10429 of 2018 is ordered to be detached with the other batch of petitions. The same shall be heard independently. Post the Special Civil Application No.10429 of 2018 on 17/01/2019.

So far as the other petitions are concerned, Mr. R.S. Sanjanwala, the learned senior counsel appearing with Mr. Dipen Desai for the petitioners submitted that they have received instructions from the respective clients not to press these petitions and withdraw the same.

In view of such statement made by the learned senior counsel, all other petitions stand disposed of as not pressed. Notice, if any, stands discharged. The interim order granted earlier also stands vacated.

In view of the same, the election process shall now be completed in accordance with law. The Civil Application, if any, stands disposed of accordingly."

9 The applicant herein and the applicant of the connected miscellaneous civil application including the State Government is aggrieved with the order passed by this Court dated 24th December 2018 referred to above. The two applicants i.e. the original petitioners Nos.4 and 6 respectively are here before this Court saying that they had not been taken in confidence nor their consent was obtained by any of the other petitioners before withdrawing the two main writ petitions. In short, it is the case of the two applicants herein that they were shocked and surprised to learn that the two petitions have been withdrawn from this Court. According to the two applicants, they had not given their consent to the other petitioners for the purpose of withdrawing the two writ petitions, and behind their back, some mischief has been played. The two applicants pray before this Court that if the other petitioners are not interested to pursue further with the two petitions, then they may be permitted to withdraw themselves from the two petitions, but the applicants for sure would like to go ahead with the petitions.

10 In such circumstances referred to above, the following averments have been made in the application:

2 The Applicant states that general election of Mehsana District Central Co­operative Bank had taken place on 19.11.2015. The said election was for 12 seats the following 12 persons came to be elected as Directors of Mehsana District Central Co operative Bank.

"i. Shri. Navinchandra Jagjivandas Patel

ii. Shri Vinodbhai Ranchhoddas Patel

iii. Shri Pankajbhai Haribhai Patel

iv. Shri Dashratbhai Jivandas Patel

v. Shri Ishwarbhai Jivabhai Patel

vi. Shri Daljibhai Ramjibhai Chaudhari

vii. Shri Ajabhai Dhanabhai Kataria

viii. Shri Natwarlal Pitamberdas Patel

ix. Shri Gaurangbhai Narandas Patel

x. Shri Dahyabhai Pitamberdas Patel

xi. Shri Keshavlal Majilal Patel

xii. Shri Dashratbhai Jethabhai Patel"

3 The Applicant states that in the constituency of individual Directors who are elected from share holders three directors came to be elected. Their names are, Shri Bhailal Prabhudas Joitaram Patel, Shri Tusharbhai Natwarlal Patel and Shri Dipakkumar Prahladbhai Patel. The Applicant further states that the Custodian had appointed following persons as Professional Directors, i.e. Shri Amitaben V. Shah and Shri. Babaldas Nagjibhai Patel on eve of election. The State Government nominated one Shri Khodabhai Narsangbhai Patel as the nominee of the State Government in exercise of the State Governments' power under section 80(3) of the Gujarat Co­operative Societies Act, 1961.

4 The applicant states that this Hon'ble Court in various writ petitions passed order directing the election officer to hold elections. The orders passed by this Hon'ble Court dated 24.02.2015 in Special Civil Application No. 2355 of 2015, order dated 12.08.2015 passed by this Hon'ble Court in Special Civil Application No. 11961 of 2015, order dated 11.09.2015 in Miscellaneous Civil Application No.2583 of 2015 to hold elections.

5 The applicant does not refer to large number of cases filed and pending before this Hon'ble Court and before Hon'ble Supreme Court for the sake of brevity. However, the applicant seeks leave to refer to the same as and when required with a view to assist the Hon'ble Court.

6 The applicant states that on 21.12.2015 agenda was issued for election of Chairman and Vice Chairman.

7 The election of Chairman and Vice chairman was to be held on 29.12.2015. On 28.12.2015 _1earned Single Judge (Coram: Hon'ble Mr. Justice A. G. Urajzee) passed an order in Civil Application No. 13447 of 2015 in Special Civil Application No. 19715 of 2015 for certain reliefs. Hon'ble Court (Coram: Hon'ble Mr. Justice A. G. Uraizee) directed that the vote cast by the nominee of the State Government shall be kept in seal cover.

8 The term of the Chairman and Vice chairman is 2 years and 6 months from the date of election. The election of Chairman and Vice Chairman took place on 29.12.2015 and the term of the 2 years and 6 months got over on 28.06.2018. Thus, a new election of Chairman and Vice Chairman requires to be held for a term of 2 years and 6 months.

9 The applicant states that in all 9 persons who were elected from the side of respondent no. 1 herein (original petitioner no. 1) Shri Natwarlal Pitamberdas Patel had filed writ petitions as under: Special Civil Application No. 19715 of 2015, Special Civil Application No. 97 of 2016 seeking certain reliefs.

In the writ petitions, applicant including all the petitioners had specifically averred that they are nine in number and they had majority and the other group led by Shri Dashratbhai J ethabhai Patel had 8 votes and they had no majority. It was the case of applicant and other petitioners that in normal course original petitioner no. 1 Shri Natwarlal Pitamberdas Patel and original petitioner no. 6 Shri Dashratbhai Jivanbhai Patel contesting elections as Chairman and Vice Chairman would have been elected as Chairman and Vice Chairman.

10 However, only before some days of election of Chairman and Vice Chairman as per the say of the petitioners two persons came to be nominated as Professional Directors Without any authority of law and the State Government appointed one government nominee and Director a day earlier to the day of the election of Chairman and Vice Chairman With the help of these three unelected but nominated members on the eve of election of Chairman and Vice Chairman the majority of applicants side was 9 came to be converted into minority by enhancing three votes. Thus, opponent group who had eight votes got three more votes and thus original respondent no. 9 and 10 got majority. However the result in the seal cover but this fact is known to one and all. It is further submitted that the result of the election, notwithstanding the fact that these Writ Petition came to be filed before the Hon'ble High Court would have been substantially dependent upon the fact that as to in whose favour the Nominated Directors would have polled their votes. However, the Hon'ble High Court may kindly consider the political gimmick that the Applicant were supposed to be elected as Vice Chairman of the Bank and these votes of Professional Directors/Nominee have been challenged by way of separate Writ Petition being Special Civil Application No.10429 of 2018 and the validity of these votes are yet to be adjudicated. Respondents No.1 to 7 herein who have illegally without the consent of the Applicant has withdrawn the petition for all Petitioners, would claim authority as Chairman/Vice Chairman after lapse of 6 months from the expiry of the terms and that too on the basis and strength of the votes of Professional Directors/ Nominee, which they themselves challenged before the Hon'ble High Court and have deliberately kept the said petition pending.

11 The applicant states that during the pendency of writ petition certain events took place as under:

The applicant states that respondent no. 9 Dashratbhai Jethabhai Patel who was the arch rival of the petitioner no. 1 Natwarlal Pitamberdas Patel has crossed sides. Petitioner no. 1 Natwarlal Pitamberdas Patel joined hands with respondent no. 9 Dashratbhai Jethabhai Patel. Respondent no. 9 was earlier the political opponent of petitioner no. 1.

The petitioner no. 1 and respondent no. 9 were in Congress party. Later on respondent no. 9 fell out with petitioner no. 1.

Respondent no. 9 joined Bhartiya Janta Party. Then after the elections of Vidhan Sabha respondent no. 9 came to be expelled from Bhartiya Janta Party for anti­party activities now reportedly petitioner no. 1 and respondent no. 9 have joined hands.

The applicant states that the aforesaid writ petitions were listed for hearing on 24.12.2018 i.e. Monday before learned Single Judge (Coram: Hon'ble Mr. Justice J . B. Pardiwala) and the same has been withdrawn.

13 The applicant on solemn affirmation states that he had not instructed learned advocate Shri Dipen Desai or learned Senior Advocate Shri Rashesh Sanjanwala to withdraw the writ petition. The applicant had contested the election of Vice President which was the subject matter of the present writ petition the applicant was never implying and interested to withdraw the writ petition. Similarly, one Mr. Patel Ishwarbhaj Jivabhai who is elected as Director was never inclined to withdraw the writ petition. The applicant states that on 24th December 2018 i.e. on Monday they had not come to the Hon'ble High Court nor they had given any letter in writing, nor had they orally conveyed to both the learned Counsels to withdraw the writ petition. As a matter of fact, the applicant wants to rigorously follow the writ petition. The applicant believes that the respondent no. I seemed to have unilaterally instructed the learned counsel to withdraw the petitions for his own individual purpose and object without informing the applicant about the same. The applicant states that as per his information even other writ petitioners in whose name the writ petition is withdrawn are also contemplating to file application for appropriate orders."

11 Mr. Kavina, the learned senior counsel appearing for the two applicants vehemently submitted that his clients had no idea about the decision taken by the other petitioners not to press the two petitions and withdraw the same. Mr. Kavina would submit that his clients would like to pursue the two petitions and take the litigation to its logical end irrespective of the fact that whether the other petitioners would like to proceed or not with the litigation. Mr. Kavina would submit that if one of the several writ applicants having an independent right to relief and which is severable from the right claimed by the other writ applicants seeks to abandon his claim in the writ petition once and for all without reservation and such abandonment does not affect the right to relief of the co­writ applicants, his / their consent would not be sine qua non. However, according to Mr. Kavina, the right to withdraw on the part of one of several writ applicants is not an unconditional right and if such withdrawal would cause real prejudice to the remaining writ applicants and they do not consent to the withdrawal, the Court, in such circumstances, should not permit the other writ applicants to withdraw the petition.

12 Mr. Kavina, the learned senior counsel tried to fortify his submissions placing reliance on the principles, as embodied under the provisions of Order XXIII Rule 1 (5) of the Code of Civil Procedure, 1908.

13 In such circumstances referred to above, Mr. Kavina, the learned senior counsel prays that there being merit in this application, the same be allowed by recalling the order passed by this Court dated 24th December 2018 and restoring the two main writ petitions to its original file.

14 Mr. P.K. Jani, the learned Additional Advocate General appearing for the State respondent has supported the case put up by the two applicants herein. According to Mr. Jani, the State is aggrieved by the last part of the order dated 24th December 2018 passed by this Court with respect to the election process Mr. Jani would submit that as such, the State Government should not have any objection if the writ applications decide to withdraw, but, while permitting the writ applicants to withdraw the petitions, this Court should not have observed that the election process shall now be completed in accordance with law. According to Mr. Jani, since the statutory term of the Chairman and Vice Chairman has come to an end, fresh election is now to be held rather than giving effect to the election, which has been made a subject matter of challenge in the two writ applications.

15 Mr. Jani submitted that even if this Court, ultimately, decides not to recall the entire order and restore the two main writ petitions, the last part of the order deserves to be deleted.

16 On the other hand, all the applications seeking recall of the order passed by this Court dated 24th December 2018 have been vehemently opposed by Mr. Mihir Thakore and Mr. R.S. Sanjanwala, the two learned senior counsel appearing for the original petitioners excluding the two applicants herein. Mr. Thakore vehemently submitted that the applicants herein i.e. the original petitioners Nos.4 and 6 respectively have betrayed the co­writ applicants at the last minute. According to Mr. Thakore and Mr. Sanjanwala, the two writ applicants have made false statements on oath in their applications seeking recall of the order passed by this Court. In this regard, Mr. Thakore placed strong reliance on the following averments made in the affidavit­in­reply filed on behalf of the original petitioners excluding the two applicants duly affirmed by the original respondent No.1 namely Natwarlal Pitambardas Patel:

"4 I say and submit that the general elections of the bank was held on 19.11.2015, wherein 12 Directors were elected and other 3 individual Directors were declared elected on 27.11.2015.

5 I say and submit that agenda for the elections of Chairman and Vice Chairman was issued on 21.12.2015 and the voting for the elections of Chairman and Vice Chairman was held on 29.12.2015. It is submitted that in the aforesaid petitions, this Hon'ble Court vide interim order dated 28.12.2015, directed that the vote of the Government nominee shall be kept in a sealed cover, whereas, the result of election Chairman and Vice Chairman shall not be declared. Therefore, since 29.12.2015, the result of the election for the Chairman and Vice Chairman has not been declared.

6 At this juncture, it would not be out of place that the Registrar, in purported exercise of powers under Section 740 of the Gujarat Co­ operative Societies Act, 1961 appointed custodian in the Mehsana District Central Co­operative Bank Limited for a period of one year. The above referred period of one year has expired long bank however, because the result of the election of the office bearers has not been declared because of the above referred Interim order, the custodian still continues to manage the affairs of the bank though as per Section 740 of the Act, appointment of custodian can only be I permitted for a period of one year.

7 I say and submit that for a period of about three years, several attempts were made to request the Hon'ble Court to take up the matter however, for one or the other reason, not attributed to anybody personally, the matter could not be taken up and because of that, the result of the office bearer's election has not been declared and the committee has not been able to start functioning.

8 I say and submit that the Co­operative societies have to be managed by the elected body and for three years. Though the Directors have been elected, they have not been able to manage the affairs of the bank. Therefore, 7 of the original petitioners thought it fit to call the meeting and decide whether to continue with the petition or to take up a call for proper management and interest of the bank and its members.

9 It is submitted that the original petitioners are leaders in co­ operative field, wherein they get numerous requests by the agricultural societies of their area that the custodian is acting in absolutely arbitrary manner under the dictates of political party and is harassing the agricultural societies and sometimes not giving loans because of which agriculturists/farmers are suffering a lot. Therefore, in the interest of the agriculturist, the opponent Nos.1, 3, 5, 6, 7 alowngwith the applicants of H both the applications herein and opponent Nos.16 decided to join hands and settle the matter.

10 Both the said parties decided that whosoever gets elected as Chairman, they will manage the affairs of the bank together for the interest of the agriculturists.

11 Therefore, the meeting was called on 23.12.2018 at Mehsana at the place of opponent No.1, wherein opponent No.1, opponent No.3, opponent No.5, opponent No.6, opponent No.7, opponent No.16 and also the present applicant remained present. In the said meeting, it was unanimously decided that the pendency of the petition and the stay order is not helping cause of agriculturists and farmers and therefore, it was unanimously decided to unconditionally withdraw the petition and authority was given to opponent No.1 to withdraw the petition.

12 He said meeting was attended by the applicant i.e. Patel Ishwarbhai Jivabhai and the applicant of the other application namely Dashrathbhai Jivandas Patel also and it was unanimously decided to withdraw the petition. On that basis, the original petitioners withdrew the petition on 24.12.2018. As far as other two petitioners namely Katariya Ajahai Dhanabhai and Chaudhary Daljibhai Ramjibhai are concerned, they have already given an affidavit to the advocate of the original petitioners that they do not wish to continue with the petition and they have accepted that appointment of professional Director and nomination of Government nominee and affidavit was also given to the advocate to withdraw their petition on their behalf. Therefore, they did not remain present in the meeting held on 23.12.2018.

13 Therefore, all the petitioners have agreed to withdraw the petition and in pursuance thereof, the petition was Withdrawn.

14 However, by suppressing all these facts and by making a wrong statement, the present application is preferred that the applicant herein and the applicant of other application have never informed learned advocate to withdraw the petition.

15 At this juncture, it would also be relevant to state that right from the date of filing of the petition i.e. in the month of November/December, 2015 till the withdrawal of the petition i.e. in December, 2018, none of the applicants I.e. Ishwarbhai Jivabha Patel and Dashrathbhai Jivanbhai Patel have ever met or visited the advocate for the original petitioners. All throughout, the opponent No.1 only was taking care of the matter and was deciding the cause on their behalf as their leader. All affidavits filed in the present proceedings are either by the opponent No.1 or his son Tusharbhai Patel. The applicant of the present application and other applicant had never objected to any affidavits or any stand taken by the opponent No.1. However, since it was concerning withdrawal of the petition, a consorted and joint decision was taken by all to withdraw the petition and now because of unknown reasons may be because of political Pressure exerted by the political party in power, the applicant has preferred the present application by making false statements.

16 The same is nothing but false statement on oath, for which the applicant be prosecuted for purgery. The allegation leveled in the application that Dashrathbhai Jethabhai Patel has joined Congress party or that the opponent No.1 and said Dashrathbhai Jethabhai Patel have joined hands for their own oblique motive are clearly false and it is stated that co­operative societies are not fought on party mandate and there is no political party involvement nor there is any mandate of political party. The decision to settle with the opponent No. 16 herein was for the better administration of the bank and for interest of the agriculturists in which the applicant also agreed. Now therefore, the applicant cannot back out from the same."

17 Mr. Thakore invited the attention of this Court to the fact that the other petitioners also have filed their individual affidavits stating on oath that the decision to withdraw the two petitions was unanimous and the two applicants herein were party to such decision.

18 I take notice of the fact that an affidavit­in­rejoinder has been filed by the applicants to the affidavit­in­reply referred to above further stating and clarifying as under:

"5 It is further submitted that with regards to the facts mentioned in the Affidavit in Reply for the purpose of indicating the number of directions which came to be elected, the date of the Agenda for the purpose of results of the election for Chairman and Vice­Chairman are not disputed. However with regards to the contents which form part of the Affidavit in reply more particularly paragraph No. 8, that in all 7 petitioners out of the original petitioners in Special Civil Application No. 97 of 2016, called a meeting to decide as to whether they wanted to continue with the writ petition or not, is specifically denied as being false and incorrect. It is submitted that the present applicant as well as the applicant of Miscellaneous Application No. 3 of 2018, were never a part of any unanimous or otherwise decision to either call for a meeting or to take up a call as to whether they want to continue with the writ petition or not. This aspect is specifically denied and it is also clarified that the applicant has never ever requested opponent No. 1 or even on his own notion applied his mind or acted otherwise for the purpose of taking up a call as to whether to continue with the petition are not. In Applicant was always willing to continue with the petition up till its logical end.

6 It is further submitted that if the contents of paragraph No. 9 of the aforesaid Affidavit in reply is perused, it is clear that the opponent No. 1 himself has admitted that the meeting was called upon by opponent No. 1, 3, 5, 6, 7 and opponent No. 16 of the present application. However it is also denied that the applicant was never part of the so­called action indicated by opponent No. 1 in paragraph No. 9 and therefore the same is specifically denied. It is also to be noted that opponent numbers 1, 3, 5, 6 and 7 of the present application are all relatives and belong to the same family. And the same time opponent No. 16 is a politician and is not willing to act in the interest of the Agriculturists but is only interested in seeing to it that he himself is benefited out of this whole drama of so­called compromise without considering the interest of the Agriculturists. Therefore it is specifically and clearly denied that the applicant had at any point of time decided to join hands and settle the matter with opponent No. 16 herein or to withdraw the petition as has been done behind the back of the Applicant herein.

7 The content: of paragraph No. 10 are denied to the effect that the present applicant was never a party to any such decision or discussion.

8 With regards to the contents of paragraph No. 11 of the Affidavit in reply, It is pertinent to note that on 23/12/2018, the applicant had not even entered the town of Mehsana and has never met opponent No. 1 on that day, neither has the applicant visited the place of opponent No. 1 on 23/12/2018. It Is pertinent to note that the contents of the aforesaid M paragraph are clearly denied as the same is a fallacy the and cannot be accepted. It is also to be noted that opponent No. 1, 3, 5, 6 and 7 might have in their capacity as family members co­conspired something with opponent No. 16 for their personal interests, which ultimately is damaging the interest of the society and the Agriculturists and therefore there was no question of any compromise with opponent No. 16 or any meeting with opponent No. 1 and the other opponents as mentioned in the affidavit in reply. Once again at the cost of repetition it is hereby clarified that the applicant has never ever consented to any compromise with Opponent No. 16, nor the applicant has attended any so­called meeting dated 23/12/2018 at the place of opponent N0. 1, neither has the Applicant even entered the city of Mehsana on 23/12/2018 and therefore it is also requested that this Hon'ble Court may kindly be pleased to initiate proceedings of perjury against the opponent No. 1 herein for filing a wrong affidavit before this Hon'ble Court for his own personal motive and gain.

9 It is further submitted that with regards to contents of paragraph 12, the same are specifically denied. As mentioned hereinabove, it is again reiterated that neither the applicant nor the applicant of the other application were present in any of the meeting as alleged by opponent No. 1 or other opponents and had never consented to, had never instructed the advocate to do so, and were never informed about any intention of opponent No. 1 and other opponents to withdraw the petition. Therefore it is manifested from the record and the Affidavit filed before this Hon'ble Court that the opponent No. 1 along with his family members who in connivance with opponent No. 16, have tried to mislead the Hon'ble Court and have kept the applicant in dark and have withdrawn the petitions without any such instructions to do so by a or on behalf of the Applicant."

19 A sur­rejoinder has also been filed to the aforenoted rejoinder duly affirmed by Shri Natwarlal Pitambardas Patel.

20 Mr. Thakore submitted that assuming for the moment that the consent of the applicant herein seeking recall of the order passed by this Court had not been obtained, still it was permissible for the other petitioners to take an appropriate decision and withdraw the same. In short, the submission of Mr. Thakore is that the consent of the applicant was otherwise also not necessary in law. Mr. Thakore tried to elaborate his submission in this regard by submitting that when nine individuals come before this Court with one cause and for a particular purpose, then, in such circumstances, if majority of the writ applicants decide not to proceed further with the litigation and withdraw the petition, the other writ applicants cannot oppose to the same. Mr. Thakore submitted that permitting the two applicants herein to pursue the litigation will be an exercise in futility, because the purpose would have been served only if all nine petitioners would have succeeded jointly. Mr. Sanjanwala, the learned senior counsel submitted that this Court may not recall the order, but, at the same time, may grant permission to the two writ applicants herein to file a fresh petition in accordance with law if they desire to continue the litigation.

21 In such circumstances referred to above, Mr. Thakore and Mr. Sanjanwala, the learned senior counsel submitted that there being no merit in the applications, those be rejected.

22 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether I should recall my order dated 24th December 2018 and restore the two main writ petitions to its original file.

23 It is very painful to note that the parties to this litigation have put this Court in a very precarious situation and that too for their own vested interest. Something very unprecedented and unexpected has happened in this matter. On the date when this Court passed the order which the two applicants herein seek to recall, this Court was given to understand that in the wake of certain developments and also keeping in mind the interest of the Bank, the petitioners would not like to proceed further and they may be permitted to withdraw the two petitions. Ordinarily, when a senior counsel assisted by the advocate on record makes such a statement, this Court as such would not have any good reason to probe into the correctness of such statement. The Court, ordinarily, would permit the petitioners to withdraw the petition. This is exactly what happened on 24th December 2018. Mr. Sanjanwala, the learned senior counsel and Mr. Dipen Desai, the learned advocate on record jointly made a statement for the purpose of withdrawing the two petitions. Within no time thereafter, Mr. C.B. Upadhyaya, the learned counsel appearing for the two applicants herein came running before this Court and made a statement that out of nine petitioners, the consent of two petitioners had not been obtained and behind their back, the petitions had been withdrawn. In such circumstances, these applications came to be filed and the same are now being adjudicated by this Court.

24 It is difficult for this Court to reach to any conclusion as to who is right and who is wrong. It is word against word. However, the matter of concern is that both the sides are asserting their part of the story on solemn affirmation. This is something very serious because if either of the side is wrong and is making false statements, then the same should warrant appropriate action in accordance with law. In this regard, I was inclined to order an inquiry, but at the last minute, I decided that the inquiry would create further problems. The same would also not be in the interest of the Bank and its depositors. However, this is something directly concerning the administration of justice. At this point of time, I do not want to order an inquiry in this regard, but I leave it to the parties concerned to take appropriate steps in accordance with law before the appropriate forum.

25 I am of the view that having regard to the imbroglio created by both the sides, prudence demands that I should recall the order and restore the two petitions to their original file. However, before passing such an order, I need to answer the principal argument of Mr. Thakore and Mr. Sanjanwala that as such, no consent of the two applicants was necessary for the purpose of the withdrawal of the two petitions. In this regard, my attention was drawn to the provisions of Order XXIII Rule 1 (5) of the Code of Civil Procedure. Although a petition under Article 226 of the Constitution cannot be said to be a regular suit, yet the general principles applicable to the civil proceedings will apply to the proceedings under Article 226 of the Constitution also [see: Udit Narain Singh vs. Additional Member Board of Revenue reported in AIR 1963 SC 786].

26 Order XXIII Rule 1(5) of the C.P.C. reads as under:

"1Withdrawal 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 sub­rule (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 subject­matter of a 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 claim with liberty to institute a fresh suit in respect of the subject­matter of such suit or such part of the claim.

(4) Where the plaintiff­

(a) abandons any suit or part of claim under sub­rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub­rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject­matter 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 sub­rule (1), or to withdraw, under sub­rule (3), any suit or part of a claim, without the consent of the other plaintiffs."

27 The aforesaid rule makes it clear that the Court should not permit one of the several plaintiffs to abandon a suit or part of a claim under sub­rule (1), or to withdraw, under sub­rule (3), any suit or part of a claim, without the consent of the other plaintiffs. Applying the aforesaid principle in the present case, my understanding of the position of law is that the right to withdraw on the part of one of the several plaintiffs is not an unconditional right and if such withdrawal will cause real prejudice to the remaining plaintiffs and they do not consent to the withdrawal, the Court will have to take such circumstance into consideration before it gives a decision one way or the other on an application for withdrawal of the suit. To put it in other words, the determining factor would be, whether the right to sue is vested jointly, the Court would be denuded of its jurisdiction to permit withdrawal / abandonment by one plaintiff without the consent of the co­plaintiff. On the other hand, in the event, the reliefs claimed are severable in the sense that the abandonment of relief claimed by one plaintiff would not affect in any manner the right of the other plaintiff to relief on the establishment of the plaint case, there is no reason as to why the plaintiff seeking to abandon his claim in the suit or withdraw from the suit should be made to continue lending his claim in the proceeding as plaintiff or as transposed defendant only because the co­plaintiff does not consent to such abandonment of the claim or withdrawal from the suit.

28 In the aforesaid context, I may refer to and rely upon two decisions. One of the Calcutta High Court and another of the Madras High Court.

29 In Mihir Kumar Talukdar vs. Pradip Kumar Sengupta reported in AIR 2011 Calcutta 211, a learned Single Judge of the Calcutta High Court has very succinctly discussed the law on the subject of Order XXIII Rule 1(5) of the C.P.C. holding as under:

"18. Referring to Order 23 Rule 1(5) of the Code, he submitted that the provisions are plain and clear and in view thereof the Court had no jurisdiction to permit the petitioner to withdraw from the suit without the consent of the opposite party no.1.

In support of the aforesaid contention, reliance was placed by Mr. Banerjee on the decisions reported in AIR 1956 Madras 15 (Thayammal v. Rangaswami Reddy and ors.), AIR 1988 Kerala 28 (K.I. Mohanan v. Smt. Jeejabai), AIR 1968 SC 111 (Hulas Rai Baij Nath v. Firm K.B. Bass and Co.) and Manu/GH/0302/2004 (a decision of the Gauhati High Court dated March 23, 2004 in Asma Khatoon and anr. v. Md. Mahmad Ali and ors.).

Countering the submission of Mr. Kar, Mr. Banerjee submitted that Section 107 of the Code would not be applicable in the present case since the appellate Court was only dealing with an interim application under Order 39 Rules 1 and 2 of the Code.

While concluding, Mr. Banerjee in his usual fairness (in reply to a query of Court) submitted that at best the petitioner could be transposed as a defendant in the suit.

He accordingly prayed for disposal of the application keeping in view these submissions made by him.

I have heard the parties at length.

Since the parties have advanced elaborate submissions on the scope, ambit and applicability of Order 23 Rule 1(5) of the Code, I propose to consider such issue first.

Order 23 Rule 1(5), read literally, leaves no iota of doubt that a plaintiff without the consent of the co­plaintiff(s) cannot be permitted by the Court to abandon his claim in the suit/withdraw from the suit.

Of all the cited decisions on the point as to whether consent of the co­ plaintiff would be imperative for permitting the applicant/plaintiff from abandoning his right to continue with the action, or withdrawing from the suit without reserving his right to institute a fresh suit, only one decision [Baidyanath (supra)] is binding on me as a precedent while the others are of persuasive value only.

In Baidyanath (supra), a Division Bench of this Court was considering whether Order 23 Rule 1(4) of the Code, as it then stood, prevented some of the plaintiffs in the suit to withdraw themselves from the suit without the consent of the rest and further as to whether apart from Rule 1(4), the Court was competent, in the interest of justice, to refuse one of several plaintiffs to withdraw or impose other restriction on him if such course is prejudicial to the interest of the other plaintiffs. Order 23 Rule 1 (4), as it then stood, read as follows :

"Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others."

The suit was instituted by a large number of persons, purportedly shebaits of a certain deity. The first prayer was for a declaration that the first plaintiff had been duly elected as one of the managing shebaits of the deity in place of the first defendant who had been validly removed by the majority of the shebaits in accordance with the provisions of the deed of endowment. The second and the alternative prayer was for removal of the first defendant as one of the managing shebaits by the Court, if he had not been validly removed by his co­shebaits already, on grounds of misappropriation and breach of trust. Some of the plaintiffs, after institution of the suit, realised that protracted litigation was sure to ruin the debottar estate. While the application of the tenth plaintiff was allowed without opposition from the other plaintiffs, applications of certain other plaintiffs were rejected by the trial Court for want of consent from the rest of the plaintiffs and they were not allowed to withdraw from the suit.

After a detailed survey of the law on the subject and on consideration of several judicial pronouncements in connection therewith, Hon'ble B.K. Mukherjee, J. (as His Lordship then was) speaking for the Bench had the occasion to observe as follows :

"*** In my opinion, the conclusion can properly be drawn that when one of several plaintiffs desire to withdraw from the suit without reserving a liberty to institute a fresh suit in respect of the same matter, the consent of the co­plaintiff is not necessary and sub­r. (4) of R.1 of O.23, Civil P.C., has no application to such cases."

However, I do not wish to rest my decision by treading the easy path of following the decision in Baidyanath (supra). Order 23 Rule 1 has been amended and it would be proper to give a decision considering the provisions thereof as it now stands. Based on my understanding of the scheme of Order 23, I am loath to read Rule 1(5) literally and would proceed to embark on an interpretative exercise to ascertain as to whether Rule 1(5) really means what it says or not.

Abandoning a suit being a voluntary action of the plaintiff, ordinarily a Court does not refuse the prayer for abandonment if one does not wish to continue with the suit and relinquish his claim once and for all. The object of Rule 1 and its sub­rules embodied in Order 23 is clear : the plaintiff should not be allowed opportunity to commence trial afresh unless there be sufficient grounds therefor and the defendant is not unduly prejudiced. It is always open to the Court to examine, while permitting a party to abandon his suit or withdraw therefrom, as to whether he has derived any material advantage by virtue of any interim order that was passed thereby placing the defendant in a disadvantageous position.

However, a decision on the issue of applicability of Order 23 Rule 1(5) would necessitate a close examination of the bundle of facts pleaded in the plaint giving rise to the plaintiffs' actionable claim and the relief that they seek therein. The provisions contained in Order 1 Rule 1 of the Code providing for situations where several persons may join in a suit as plaintiffs also require due consideration. The determining factor would be, whether the right to sue is vested jointly in all the plaintiffs or not. In such a case, where right to sue is vested jointly, a Court would be denuded of jurisdiction to permit withdrawal/abandonment by one plaintiff without the consent of the co­plaintiff. On the contrary, in the event the reliefs claimed are severable in the sense that abandonment of relief claimed by one plaintiff would not affect in any manner the right of the other plaintiff to relief on establishment of the plaint case, there is no reason as to why the plaintiff seeking to abandon his claim in the suit, or withdraw from the suit without asking for permission of the Court to file a fresh suit, should be made to continue lending his name in the proceedings as plaintiff or as a transposed defendant only because the co­plaintiff does not consent to such abandonment of the claim or withdrawal from the suit without any justification therefor. Rule 1(5), having regard to the scheme of the other sub­rules of Order 23, would call for purposive construction if the situation of a particular case so demands.

At this juncture, I may remind myself of the purposive approach adopted by Lord Denning in the decision in Seaford Court Estates Ltd. v. Asher reported in (1949) 2 All ER 155, which reads as follows :

"The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature.... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases." (underlining for emphasis by me)

I, therefore, hold that if one of several plaintiffs having an independent right to relief and which is severable from the right claimed by the other plaintiff(s) seeks to abandon his claim in the suit once and for all without reservation and such abandonment does not affect the right to relief of the co­plaintiff(s), his/their consent would not be a sine qua non and the learned Court may, in its discretion, grant the prayer made before it on such terms as it considers just and proper supported with reason. Such an interpretation is intended to 'iron out the creases' and not alteration of the material of which the Code is woven."

30 In M.E. Hameed and others vs. K.M. Sheriff Rowther and another reported in 1971 (1) MadLJ 79, a learned Single Judge of the Madras High Court has observed in context with Order 23 Rule 1(4) of the C.P.C. Rule 4 has been deleted and substituted by Rule 5. However the principles explained in the said judgment are quite apt for their applicability in the present case. I may quote the relevant observations as under:

"10 In Baidyanath Nandi v. Shyam Sunder A.I.R. 1943 Cal. 427 a different line of approach was adopted for interpreting the above provisions. The Bench observed that the operation of Sub­Rule (4) is confined to cases where permission of the Court is necessary in order to enable the plaintiff to withdraw from a suit or in other words, it is applicable only when the plaintiff wants to have the liberty of instituting a fresh suit in respect of the same subject­matter. In such a case, express leave of the Court is necessary. But if the withdrawing plaintiff does not want to reserve any right to renew the suit on his own account in future, and is prepared to take the consequences indicated in Sub­Rule (3), it cannot be said that his right of withdrawal is dependent on the consent of the other plaintiffs. When there is no question of seeking permission from the Court to institute a fresh suit on the same subject­matter, Sub­Rule (4) of Rule 1 of Order 23 which speaks of authorising the Court to permit one of several plaintiffs to withdraw, cannot have any possible application. Then the Calcutta High Court observed:

When therefore one of several plaintiffs desires to withdraw from the suit without reserving a liberty to institute a fresh suit in respect of the same matter, the consent of the co­plaintiff is not necessary and Sub­Rule (4) of Rule 1 of Order 23 has no application to such cases.

After laying down thus a proposition in general terms regarding the interpretation of the Rule, the Calcutta High Court made the following observation:

The Court has inherent powers quite apart from Sub­Rule (4) to impose restrictions upon the right of one of the several plaintiffs to withdraw from a suit when such course is detrimental to the interest of the other plaintiffs even though the withdrawing plaintiff does not want any liberty to renew his suit.

We may also refer to the decision of a single Judge (Krishnaswamy Aiyangar, J.) of this Court in Tulsidas vs. Sethuramaswami Aiyar (1942) 1 M.L.J. 190. The learned Judge cited Ramaswami Chettiar v. Rengn Chettiar (1933) 65 M.L.J. 693 : A.I.R. 1933 Mad. and observed that the learned Judges in this case after noticing the point, namely, whether Sub­Rule (4) should govern Sub­Rule (1) or not, did not find it necessary to decide it and based their decision upon a different point altogether. Then the learned single Judge followed two other cases Mohamaya Chowdhrain v. Durga Churn Shaha (1881) 9 Cal.L.R. 332 and Nilappa Gouda v. Basan Gouda (1926) 29 Bom.L.R. 299, and expressed a view similar to that of the Calcutta High Court, namely, where liberty to institute a fresh suit is required, Sub­Rule (4) is called into operation. But having expressed the relative scope of Sub­Rule (4) and Sub­Rule (1) in this manner, the learned Judge observed that the right to withdraw on the part of one of several plaintiffs is not an unconditional right and if such withdrawal will cause real prejudice to the remaining plaintiffs and they do not consent to the withdrawal, the Court will take this circumstance into consideration before it comes to a decision one way or the other on an application for withdrawal. It may be noticed that the Calcutta Bench case which came later referred to the single Judge's decision Tulsidas v. Sethuramaswami Aiyar (1942) 1 M.L.J. 190, and in substance laid down the same principle as laid down in that decision.

We are inclined to adopt the view expressed by the Bench of this Court in Ramaswami Chettiar v. Rengan Chettiar (1933) 65 M.L.J. 693. The observations of the Bench imply that their view was that Order 23, Rule 1(4) must be read as a qualification of Order 23, Rule 1(1). The Bench said that what is enunciated in Sub­Rule (4) is a perfectly valid principle, and it finds support in the terms of Sub­Rule (1) of Order 23, which says that the plaintiff "may withdraw". They also observed that the expression, 'plaintiff' in Sub­Rule (1) must be read as all the plaintiffs, collectively, and not so as to include one only amongst several plaintiffs. From this point of view, it is possible to view Sub­Rule (1) of Rule 1 of Order 23 as laying down a proposition that where there is only one plaintiff, he may withdraw from the suit, and where there are several plaintiffs all of them acting together can also withdraw. But there may arise special difficulty in a case when there are several plaintiffs and all of them I do not desire to withdraw, but only one or some of them desires to withdraw, but not the rest. Sub­Rule (4) of Rule (1) of Order 23, lays down a salutary provision to meet this difficulty. It says that in such cases, the Court must find out whether the remaining plaintiffs have given their consent or not and whether the grant of permission would prejudice them or not and this should be a factor that should weigh with the Court, in considering the grant of the permission for withdrawal. It is relevant to observe that even the judgment of the Calcutta High Court and the Judgment of the single Judge (Krishnaswami Aiyangar, J.) have ultimately laid stress on the inherent powers of the Court to refuse permission to one of several plaintiffs to withdraw without the consent of others, if such a course would cause prejudice to the remaining plaintiffs. Even if we give weight to the view of the Calcutta High Court and the view of the single Judge of this Court, it will be necessary to consider in any event, whether the grant of permission to the first plaintiff in this case to withdraw from the suit will prejudice the remaining plaintiffs and whether the Court should not grant such permission. Unfortunately, the learned Subordinate Judge has not at all adverted to this aspect of the matter in the present care, namely, whether the grant of permission to the first plaintiff to withdraw would prejudice the co­plaintiffs. It is a matter of regret that he did not do so. He has referred to the allegations of the other plaintiffs that the first plaintiff has been won over by the defendant that the remaining plaintiffs are equally interested in the proper administration of the wakf and that the first plaintiff's unwillingness to continue the suit is no ground to grant permission to withdraw the suit and that if necessary he may be transposed as a defendant..."

31 I am looking at the matter from the angle whether the two main petitions could have been filed only by the two applicants herein without the aid of the other seven co­petitioners. It is one thing to say that all nine petitioners jointly preferred the writ petition as they were jointly espousing the cause. However, the cause in the two writ petitions, as sought to be espoused, is not of the nature that the two applicants could not have filed the petition without the aid of the other petitioners. In substance, all the petitioners were aggrieved by the action of the State Government in appointing a custodian and also co­opting three Directors. This, according to the petitioners, as alleged, was an attempt on the part of the State Government to ensure that a particular Chairman and Vice Chairman is elected in the election. However, with passage of time, the equations seem to have changed and excluding the two applicants, the other seven petitioners have thought fit not to proceed further and see to it that the Chairman and Vice Chairman take over the administration of the Bank from the custodian. However, the two applicants herein do not want it to happen. The two applicants would still like to seek a declaration from this Court that the custodian could not have co­opted the two Directors and the Government could not have appointed a Director in exercise of its power under Section 80 of the Act.

32 In the overall view of the matter, I have reached to the conclusion that it will be in the fitness of things to recall the order dated 24th December 2018 and restore the petition to its original file. Once the petition is restored, they will be heard by the Honourable Court taking up matters relating to the subject. All other contentions available to the parties in law are kept open.

33 In the result, all the four miscellaneous civil applications are allowed. The order passed by the Court dated 24th December 2018 is hereby recalled. The Special Civil Application No.19715 of 2015 and the Special Civil Application No.97 of 2016 respectively are ordered to be restored to their original file. With the restoration of the two main petitions, the position prevailing prior to withdrawal of the two petitions also stands restored.