REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NO(s). 984 OF 2006

RAJENDRA PRASAD GUPTA                        Appellant (s)

                VERSUS

PRAKASH CHANDRA MISHRA & ORS.                Respondent(s)

O  R  D  E  R

Heard learned counsel for the appellant and respondent  

Nos. 1 to 3.  No one appeared for respondent No. 4.

This Appeal, by special leave, has been filed against  

the impugned judgment of the High Court of Allahabad dated  

06.02.2004 passed in FAFO No.2103/2003.

It appears  that the  appellant was  the plaintiff  in  

Suit  No.  1301  of  1997  before  the  Court  of  Civil  Judge  

(Junior  Division)  Varanasi.   He  filed  an  application  to  

withdraw the said suit.  Subsequently, it appears that he  

changed his mind and before an order could be passed in the  

withdrawal application he filed an application praying for  

withdrawal  of  the  earlier  withdrawal  application.  The  

second application had been dismissed and that order was  

upheld by the High Court. Hence, this appeal by special  

leave.

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The  High  Court  was  of  the  view  that  once  the  

application for withdrawal of the suit is filed the suit  

stands dismissed as withdrawn even without any order on the  

withdrawal application. Hence, the second application was  

not maintainable.  We do not agree.

Rules of procedure are handmaids of justice.  Section  

151 of the Code of Civil Procedure gives inherent powers to  

the  court  to  do  justice.  That  provision  has  to  be  

interpreted to mean that every procedure is permitted to  

the court for doing justice unless expressly prohibited,  

and not that every procedure is prohibited unless expressly  

permitted. There is no express bar in filing an application  

for withdrawal of the withdrawal application.

In  Narsingh Das v.  Mangal Dubey, ILR 5 All 163 (FB)  

(1882), Mr. Justice Mahmood, the celebrated Judge of the  

Allahabad High Court, observed :-  

"Courts  are  not  to  act  upon  the  principle that every procedure is to be  taken  as  prohibited  unless  it  is  expressly provided for by the Code, but  on  the  converse  principle  that  every  procedure  is  to  be  understood  as  permissible  till  it  is  shown  to  be  prohibited by the law.  As a matter of  general  principle  prohibition   cannot  be presumed."

The above view was followed by a Full Bench of the  

Allahabad High Court in Raj Narain Saxena  Vs.  Bhim Sen &  

others, AIR 1966 Allahabad 84 FB, and we agree with this  

view.

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Accordingly,  we  are  of  the  opinion  that  the  

application  praying  for  withdrawal  of  the  withdrawal  

application was maintainable. We order accordingly.

In the result, the impugned judgment of the High Court  

is set aside and the Appeal is allowed.  No costs.

The suit shall proceed and to be decided on merits,  

expeditiously .

.....................J.  (MARKANDEY KATJU)

.....................J.  (GYAN SUDHA MISRA)

NEW DELHI; JANUARY 12, 2011

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