Jagtar
Singh Vs. Pargat Singh & Ors [1996] INSC 1513 (27 November 1996)
K. Ramaswamy,
G. T. Nanavati
ACT:
HEAD NOTE:
O R D
E R
This
special leave petition arises from the order of the High Court of Punjab & Haryana
made, on July 19, 1996 in Civil Revision NO. 4233/95.
Respondent
No. 1, elder brother of the petitioner filed the suit for declaration against
the petitioner and three brothers that the decree dated May 4, 1990 was null and void which was decreed by the
Subordinate Judge, Hoshiarpur on September 29, 1993. The petitioner has filed an appeal in the Court of the
Additional District Judge, Hoshiarpur. The counsel made a statement on September 15, 1995 that the petitioner did not intend
to proceed with the appeal. On the basis thereof, the appeal was dismissed as
withdrawn. The petitioner challenged the order of the appellate Court in the
revision. The High Court confirmed the same in the impugned order. Thus, this
special leave petition.
The
learned counsel for the petitioner has contended that the petitioner had not authorised
the counsel to withdraw the appeal. The Court after admitting the appeal has no
power to dismiss the same as withdrawn except to decide the matter on merits
considering the legality of the reasoning of the trial Court and the
conclusions either agreeing or disagreeing with it. We find no force in the
contention. Order III, Rule 4, CPC empowers the counsel to continue on record
until the proceedings in the suit are duly terminated. The counsel, therefore,
has power to make a statement on instructions from the party to withdraw the
appeal. The question then is: whether the court is required to pass a reasoned
order on merits against the decree appealed from the decision of the Court of
the Subordinate Judge? Order XXIII, Rule 1(1) and (4) give power to the party
to abandon the claim filed in the suit wholly or in part. By operation of
Section 107(2) of the CPC, it equally applies to the appeal and the appellate
Court has co- extensive power to permit the appellant to give up his appeal
against the respondent either as a whole or part of the relief. As a
consequence, though the appeal was admitted under Order XXXXI, Rule 9,
necessarily the Court has the power to dismiss the appeal as withdrawn without
going into the merits of the matter and deciding it under Rule 11 thereof.
Accordingly,
we hold that the action taken by the counsel is consistent with the power he
had under Order III, Rule 4, CPC, If really the counsel has not acted in the
interest of the party or against the instructions of the party, the necessary
remedy is elsewhere and the procedure adopted by the Court below is consistent
with the provisions of CPC. We do not find any illegality in the order passed
by the Additional District Judge as confirmed by the High Court in the
revision.
The
special leave petition is accordingly dismissed giving liberty to the
petitioner to proceed in according with law.
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