The Allahabad High Court has held that a party which has invoked its supervisory jurisdiction may discontinue that challenge when it no longer wishes to pursue it, and that withdrawal does not disturb the order under challenge or the rights the opposite party has acquired under it. It held that the opposite party's wish to have the controversy decided on merits is not, by itself, a ground...
The Allahabad High Court has held that a party which has invoked its supervisory jurisdiction may discontinue that challenge when it no longer wishes to pursue it, and that withdrawal does not disturb the order under challenge or the rights the opposite party has acquired under it.
It held that the opposite party's wish to have the controversy decided on merits is not, by itself, a ground to compel continuation of the proceedings.
Justice Dr. Yogendra Kumar Srivastava held,
“Discontinuance of the challenge before the superior forum does not, by itself, withdraw, recall, cancel, modify or nullify the order under challenge. Where that order has conferred a right or benefit upon the opposite party, withdrawal of the challenge ordinarily leaves the adjudication and the rights flowing from it undisturbed, unless the order is otherwise displaced in accordance with law.”
The respondent-landlords had obtained an order dated 28.02.2013 from the Prescribed Authority releasing the tenanted premises under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The tenants' appeal under Section 22 of the Act was dismissed on 17.12.2021. They approached the High Court, which stayed both orders on 25.04.2022.
During the pendency of the petition, the tenants applied to withdraw it, relying on a family settlement/Memorandum of Understanding among the members of the family of late Jai Narayan Agrawal, and stating that they had handed over possession on 07.04.2026 to Sri Narendra Kumar Agrawal with the consent of Sri Sanjeev Agrawal and Sri Manish Agrawal.
The landlords opposed the withdrawal. They pleaded that no rent had been paid since 01.09.2023 and that rights to release and possession had accrued to them once the release order was affirmed in appeal. They disputed the surrender, contending that Sri Narendra Kumar Agrawal was neither a co-owner nor a co-landlord and had not been a party to the release proceedings, and in the alternative sought a direction to the tenants to clear the arrears.
Applying the principles governing withdrawal of proceedings under Order XXIII Rule 1 of the Code of Civil Procedure, 1908, the Court observed that the power to permit withdrawal cannot be used to defeat a right already accrued to the opposite party. It held that withdrawal here would neither undo the order of 28.02.2013 nor recall that of 17.12.2021, both of which would remain operative, so that the landlords lost nothing by the tenants giving up the challenge.
On the demand that the arrears be cleared as the price of withdrawal, the Court held
“A direction requiring payment or deposit of the alleged arrears as a condition for permitting withdrawal would require this Court, in the course of deciding the withdrawal application, to examine the existence and extent of a disputed monetary liability. Such an enquiry is not necessary for determining whether the petitioners may discontinue the present challenge.”
Allowing the withdrawal application, the Court dismissed the petition as withdrawn, without liberty to institute a fresh petition under Article 226 or Article 227 to re-agitate the same cause of action, subject to the principle laid down in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior.
The interim order was vacated. No finding was recorded on the alleged surrender, the possession memo, the family settlement or the arrears, all of which were left to the competent forum.