Case Note & Summary
The matter arose from O.S.No.180 of 2019 filed by the revision petitioner as plaintiff seeking declaration and permanent injunction over suit property. The first defendant filed a counter claim seeking declaration of boundaries and recovery of possession. The plaintiff filed a reply statement to the counter claim. Pending trial, the petitioner filed a memo stating parties had settled the matter outside court and sought withdrawal of suit. The first respondent objected, contending no settlement was reached. The petitioner then filed a second memo seeking permission to withdraw the suit without reserving liberty to file a fresh suit. The trial court permitted withdrawal and continued with the counter claim. Subsequently, writ petitions W.P.No.10093 of 2022 and W.P.No.14885 of 2024 were filed and disposed of by this Court. The first writ petition quashed an order mutating patta on the ground that the suit had been withdrawn and directed parties to agitate their rights in the pending counter claim. The second writ petition concerned removal of document remarks in the Encumbrance Certificate. The petitioner later relied on a Division Bench order dated 09.09.2025, which allegedly gave liberty to seek reopening of the suit. The petitioner filed I.A.Nos.12 and 13 of 2026 in the trial court seeking condonation of delay of 1431 days and recall of the order permitting withdrawal of the suit. By order dated 01.07.2026, the trial court dismissed both applications. Aggrieved, the petitioner filed the present civil revision petitions under Article 227 of the Constitution of India. The core legal issues were whether an application under Section 151 CPC to recall a withdrawal order was governed by Section 5 or Article 137 of the Limitation Act, 1963; whether the trial court erred in dismissing the applications; and whether the petitioner was entitled to reopen the suit after voluntarily withdrawing it without reserving liberty. The petitioner's senior counsel argued that since the application was filed under Section 151 CPC, no limitation provision applied, or at most Article 137 would apply giving three years from the date right accrued, and that the trial court erroneously applied Section 5. He relied on Jet Plywood (P) Limited v. Madhukar Nowlakha, Karuppa Gounder v. Pongiyanna Gounder, and Rajendra Prasad Gupta v. Prakash Chandra Mishra. The first respondent's counsel contended that the petitioner had voluntarily invoked Section 5 and failed to show sufficient cause for the inordinate delay of 1431 days; she also highlighted the lack of bonafides and conscious withdrawal without reservation of liberty. She relied on Esha Bhattacharjee, Rajneesh Kumar, Thirunagalingam, and Shivamma. The government counsel submitted that inherent powers under Section 151 CPC must be exercised on a case-to-case basis and that the petitioner had taken advantage of the withdrawal by mutating patta in his name. The High Court recorded the submissions and procedural history, emphasizing that when a counter claim is pending, withdrawal of the main suit does not end litigation; the counter claim must be decided as a suit. The court considered the argument that Section 151 CPC applications may not be subject to limitation, and if any limitation applied, it would be residuary Article 137. It also noted the respondent's contention that the petitioner had consciously withdrawn the suit and had taken advantage by mutating patta. The available excerpt of the judgment does not include the final operative order, but the court was examining whether the trial court's order dated 01.07.2026 should be interfered with under Article 227. The judgment excerpt ends without recording a final decision on the revision petitions.
Headnote
A) Civil Procedure - Withdrawal of Suit and Recall - Application under Section 151 CPC to recall an order permitting withdrawal - Code of Civil Procedure, 1908, Section 151; Limitation Act, 1963, Article 137 - The revision petitioner argued that since the application was filed under Section 151 CPC and no specific provision exists, only residuary Article 137 Limitation Act would apply, not Section 5, and the trial court erred by applying Section 5 and examining delay of 1431 days. The Court considered submissions and precedents; no final determination available in extracted portion. (Paras 4-6) B) Limitation Law - Condonation of Delay - Applicability of Section 5 to Section 151 CPC applications - Limitation Act, 1963, Section 5, Article 137 - The contesting respondent contended that petitioner had voluntarily invoked Section 5 and must show sufficient cause for 1431 days; the trial court found lack of bonafides. The Court examined whether delay condonation was required at all when inherent powers are invoked. (Paras 7-9) C) Civil Procedure - Counter Claim and Withdrawal of Suit - Effect of withdrawal on pending counter claim - Code of Civil Procedure, 1908, Section 151 - The counter claim filed by first defendant continued and had to be decided as a suit; withdrawal of plaintiff's suit did not extinguish the counter claim. The Court noted earlier writ order recorded that counter claim in Survey No.94/13B2 was pending. (Paras 3,12) D) Civil Procedure - Inherent Powers of Court - Discretionary nature of Section 151 CPC - Code of Civil Procedure, 1908, Section 151 - Government counsel argued inherent powers must be exercised case by case; petitioner took advantage of withdrawal by mutating patta. The Court considered whether discretion was properly exercised by trial court. (Paras 10,12) E) Constitutional Law - Supervisory Jurisdiction under Article 227 - Scope of interference in revisional jurisdiction - Constitution of India, 1950, Article 227 - The revision was filed under Article 227 challenging interlocutory order; court examined whether trial court committed error warranting interference. (Paras 1-2)
Issue of Consideration
Whether an application under Section 151 CPC to recall an order permitting withdrawal of suit was barred by limitation and whether Section 5 or Article 137 of Limitation Act applied; whether the trial court erred in dismissing the applications to condone delay and recall the withdrawal order; and whether the petitioner was entitled to reopen the suit after voluntarily withdrawing it without liberty.
Law Points
- Application under Section 151 CPC to recall order permitting withdrawal of suit may be governed by residuary Article 137 of Limitation Act
- 1963
- not Section 5
- procedure is a handmaid of justice
- counter claim survives withdrawal of main suit
- inherent powers under Section 151 CPC must be exercised on case-to-case basis
