Under the Code of Civil Procedure, is an application under Section 151 to recall an order permitting withdrawal of a suit maintainable?

The plaintiff in O.S.No.180 of 2019 is the revision petitioner in both these revisions.

I have heard Mr.S.Subbiah, learned Senior Counsel for Mrs.Elizabeth Ravi, learned counsel for the revision petitioner in both the revisions; Mrs.Kanimozhi Sundar, learned counsel for the contesting 1st respondent and Mrs.S.Yogalakshmi, learned Government counsel for the respondents 2 to 5 in both the revision petitions.

The revision petitioner, as plaintiff, had filed O.S.No.180 of 2019, seeking the petitioner’s right over the suit property to be declared and for a consequential permanent injunction to restrain the 1st defendant from interfering with the plaintiff’s peaceful https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) possession and enjoyment of the suit property. After receipt of summons, the 1 st defendant has filed a counter claim, praying for a declaration that the boundaries mentioned in the settlement deed dated 21.11.2008 in Doc.No.10360 of 2008 to the extent of 3.600 sq.ft relates to Survey No.94/13B2 and also for recovery of possession from the plaintiff. Pending the suit and counter claim, the petitioner chose to withdraw the suit. In view of the counter claim having been filed by the 1 st respondent/defendant, the trial Court continued to deal with the counter claim, which is being defended by the revision petitioner admittedly, by filing a reply statement.

It is the first submission of Mr.S.Subbiah, learned Senior Counsel that the Trial Court failed to see that the application filed to recall the order seeking permission to withdraw the suit was filed only under Section 151 of CPC, invoking the inherent powers of the Court and when there is no specific provision for such an application to be made under the Code of Civil Procedure, then it would only attract Article 137 of the Limitation Act, which enables the petitioner to bring the suit, within three years, from the date of right accruing to the petitioner. It is his further submission that when the application was filed under Section 151 of CPC, there is no question of limitation coming into play at all. In this regard, he would rely on the decision of the Hon’ble Supreme Court in Jet Plywood (P) Limited and another Vs. Madhukar Nowlakha and others, reported in (2006) 3 SCC 699; decision of this Court in Karuppa Gounder Vs. Pongiyanna Gounder and others, reported in (2020) 8 MLJ 316, as well as the decision https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) of the Hon’ble Supreme Court in Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others, reported in 2011 (2) CTC 463.

The learned Senior Counsel, referring to the said decisions, would state that procedure being only a handmaid of justice, merely because there is no specific provision in the Code to enable the petitioner to take out such an application seeking to recall the order passed, permitting the petitioner to withdraw the suit, it will not leave the petitioner remediless. He would further state that the Trial Court has only applied the Limitation Act and the rigors of Section 5 against the petitioner and underwent an unnecessary exercise in enquiring as to whether the delay in taking out the application was satisfactory explained, as required under Section 5 of the Limitation Act, without noticing that the application having been filed under Section 151 of CPC and there being no specific Section or Article in the Limitation Act dealing with such an application, then the residuary Article 137 alone would apply. In this regard, he would state that in writ proceedings, touching the very same subject matter, the Division Bench of this Court gave liberty to the petitioner to seek reopening of the suit. The said order was passed on 09.09.2025.

Referring to the said liberty, Mr.S.Subbiah, learned Senior Counsel would contend that the petitioner was entitled to move an application within three years from 09.09.2025 and therefore, the delay could not have been put against the petitioner. In any https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) event, according to the learned Senior Counsel, this is only an argument in demurer since the main contention of the learned Senior Counsel is that there can be no delay in the first place requiring a condone delay application, in view of the application being filed under Section 151 of CPC, invoking the inherent powers of the Court.

Per contra, Mrs.Kanimozhi Sundar, learned counsel appearing for the contesting 1st respondent would state that the petitioner has not relied on Article 137 of the Limitation Act before the Trial Court and has raised it for the first time in this revision petition. She would further contend that when the petitioner himself had voluntarily invoked Section 5 of the Limitation Act and sought for condonation of an inordinate delay of 1431 days, it was for the petitioner to make out sufficient cause, as mandated under Section 5 of the Limitation Act, which has been interpreted time and again by the Hon’ble Supreme Court as well as this Court, in a number of decisions.

It is therefore the contention of the learned counsel for the 1 st respondent that the petitioner has not been able to satisfy or show sufficient cause, for the long delay of 1431 days, which is even beyond the period of three years. The learned counsel could further contend that the Trial Court has elaborately discussed the bonafides of the revision petitioner, though it was in the order passed in the Section 5 application and in view of the dismissal of the Section 5 application, the learned Judge has dismissed the other application seeking to recall the order. She would therefore state that the issues https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) have been threadbare discussed by the Trial Court in the application for condonation of delay and in such circumstances, it cannot be contended that the application to recall was decided summarily or without assigning any elaborate reasons. She would further contend that the Trial Court has specifically gone into the lack of bonafides on the part of the petitioner, who has consciously withdrawn the suit.

The learned counsel for the 1st respondent would also invite my attention to the fact that a memo was filed, claiming that a settlement had been reached between the plaintiff and the 1st defendant and therefore, the plaintiff sought for permission to withdraw the suit. However, strong exception was taken to the said memo by the 1 st respondent, contending that there was no such settlement. Thereafter, a subsequent memo has been filed by the revision petitioner, seeking to withdraw the suit, without even any liberty being reserved for filing a fresh suit on the same cause of action. It is therefore the contention of the learned counsel for the 1 st respondent that the petitioner cannot claim “mistake” and seek to reopen the suit, which has been voluntarily and consciously withdrawn by the petitioner. In support of her submissions, the learned counsel for the 1st respondent has relied on the following decisions: 1. Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others, reported in (2013) 9 S.C.R 782; 2. Rajneesh Kumar and another Vs. Ved Prakash, reported in 2024 (2024) 11 S.C.R 1466; 3. Thirunagalingam Vs. Lingeswaran and another, reported in (2025) 6 S.C.R 253; and https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) 4. Shivamma (Dead) by Lrs Vs. Karnataka Housing Board and others, reported in (2025) 9 SCR 1774. The learned counsel for the 1st respondent would therefore state that no error has been committed by the Trial Court, warranting interference in revision.

Mrs.S.Yogalakshmi, learned Government counsel for the official respondents would state that no doubt, in an application under Section 151 of CPC, invoking the inherent powers of the Court, the question of limitation cannot be put against the applicant, it is however her contention that when the applicant seeks to invoke the inherent powers of the Court, the case will have to be decided on a case to case basis, based on the facts and circumstances of the each case and merely because an application is filed seeking to recall the earlier order, permitting withdrawal of the suit, it cannot be allowed for the mere asking. She would therefore state that the Trial Court has rightly exercise its discretion and found that the petitioner was not entitled to an order recalling the earlier order permitting the plaintiff to withdraw the suit, especially after having taken advantage of the dismissal of the suit, by approaching the revenue officials and mutating patta in the plaintiff’s name.

I have carefully considered the submission advanced by the learned Senior Counsel for the revision petitioner and the learned counsel for the respondents. https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm )

The petitioner/plaintiff, admittedly approached the Court with a suit for declaration and consequential reliefs. On appearance, the 1st defendant/1st respondent, along with the written statement, filed a counter claim, seeking a declaratory right and also recovery of possession. Admittedly, the plaintiff has filed a reply statement to the said counter claim. Pending trial of the suit and counter claim, the petitioner filed a memo, seeking to withdraw the suit. In the said memo, the petitioner had stated that the parties had settled the matter outside the Court. The said memo was objected to by the 1st respondent/1st defendant, contending that there was no such settlement or compromise reached between the parties. Thereafter, the petitioner filed a second memo, seeking permission to withdraw the suit, without any liberty being sought for, for filing a fresh suit, on the same cause of action. It is on the said memo, which was admittedly signed by the petitioner and the petitioner’s counsel, the Court permitted withdrawal of the suit and proceeded with the counter claim filed by the 1st defendant. In the meantime, the 1st respondent filed a writ petition in W.P.No.10093 of 2022, in which, the revision petitioner was also represented by a counsel. Paragraph No.4 of the order passed by this Court in the said writ petition assumes significance and the same is extracted hereunder for easy reference:

Thereafter, the 1st respondent/1st defendant filed yet another writ petition in W.P.No.14885 of 2024, which also came to be disposed of on 15.07.2024. The said writ petition was filed by the 1st respondent, challenging the proceedings of the District Registrar, Vellore, and to consequently direct the SRO, Tirupathur, to remove the document remarks in the Encumbrance Certificate. The said writ petition was also decided by the very same learned Judge, who decided the earlier writ petition and even in this writ petition, this Court recorded the fact that the suit was filed in O.S.No.180 of https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) 2019 by the petitioner herein and the same was withdrawn and the counter claim alone survived for consideration.

At this juncture, it would be relevant to refer to the arguments of Mr.S.Subbiah, learned Senior Counsel that the revision petitioner was not put on notice in the said writ petition, before the order came to be passed. However, the learned counsel for the 1st respondent would contend that the revision petitioner, as 5 th respondent in the said writ petition, was served and it is only on the said date of the order being passed that the counsel was not present. On going through the order dated 15.07.2024, I notice that even in the very opening paragraph of the order, this Court has recorded that since no adverse order is being passed against the revision petitioner herein, notice to the revision petitioner is dispensed with. Therefore, there is no merit in the argument of the learned counsel for the 1st respondent that the revision petitioner was served in the writ petition. However, this discussion pales into insignificance, in view of the fact that the revision petitioner challenged the order of the learned Single Judge in W.P.No.14885 of 2024 dated 15.07.2024, by preferring a writ appeal in W.A.No.1913 of 2024. The said writ appeal was disposed of on 09.09.2025, confirming the order of the writ Court, in favour of the 1st respondent. However, at paragraph No.12 of the judgment of the Division Bench of this Court, liberty was given to the revision petitioner. The said paragraph is extracted hereunder, for easy reference: https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) “12.In the present case, the suit filed has been withdrawn. However, it is for the parties to initiate appropriate action for redressal of their grievance by filing proper applications before the Civil Court. In the event of filing any fresh sit or restoration of suit, the Civil Court has to decide the issues independently on merits and uninfluenced by any of the observations made by this Court.”

This judgment of the Division Bench was in the writ appeal preferred by the revision petitioner only. When the Division Bench had given liberty to the petitioner to redress his grievances by filing appropriate application before the Civil Court or including fresh suit or restoration of the suit, the petitioner has not chosen to take any immediate steps to take out the applications for condonation of delay or to recall the order permitting the petitioner withdraw the suit, contending that there is no limitation period prescribed for filing such an application.

This now takes me to the question of limitation. Admittedly, there is no provision under CPC, providing for such recall of an order permitting the plaintiff to withdraw the suit. However, as held by the Hon’ble Supreme Court in Jet Ply Wood’s case, merely because, there is no specific provision permitting recalling of an order withdrawing a suit, the Court is entitled to invoke its inherent powers under Section 151 of CPC and permit recalling of such an order. It is settled legal position that procedure is only a handmaid of justice and it is therefore not necessary that the Code should encompass all scenarios. Even in cases where no specific provision is found or available https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) in the Code, yet the Court is entitled to fall back on its inherent powers under Section 151 of CPC, in order to do justice to the parties.

The Hon’ble Supreme Court, even in Rajendra Prasad Gupta’ case, held that there is no express bar for filing an application for withdrawal of a withdrawal application. In such view of the matter, the application taken out under Section 151 of CPC cannot be found fault with. Once an application is permissible or maintainable under Section 151 of CPC, then as held by this Court in Karuppa Gounder’s case, limitation would be in terms of Article 137 of the Limitation Act i.e three years from the date on which the right accrues to the applicant.

Though it is vehemently contended by the learned counsel for the 1st respondent that the condonation of delay 1431 days sought for is itself beyond the period of three years, I am unable to countenance the said submission, since the petitioner was agitating his rights in the writ appeal and the Division Bench of this Court granted liberty to the petitioner to take out an application to restore the suit. The said judgment was passed on 09.09.2025 and though no immediate steps were taken by the petitioner, admittedly applying Article 137 of the Limitation Act, the applications having been filed within a period of three years from 09.09.2025, I am unable to reject the application on the ground of delay or limitation. https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm )

The trial Court therefore clearly fell in error in dismissing the condone delay application, on the ground that the petitioner has not shown sufficient cause when the petitioner had only invoked Section 151 of CPC and the question of delay cannot arise in the first place, especially when the application was filed within three years from the date of liberty granted by the Division Bench, on which date, a right accrued to the petitioner to move the application in question. However, merely because I have held that the question of delay or even latches cannot be put against the petitioner, when the petitioner invoked the inherent powers of the Court under Section 151 of CPC, the petitioner has to make out a strong case for recalling the order permitting him to withdraw the suit.

Even though the Trial Court has summarily dismissed the recall application, the recall application has been elaborately discussed in the condone delay application and therefore, I do not intend to allow technicalities to come in the way. The very same Court has decided both the applications, though in and by separate orders. When the entire crux of the recall application have been decided in the Section 5 application itself and that has been referred to in the order in the recall petition, I am unable to find fault with the Trial Court. It would be sufficient to read the Section 5 order into the order passed, rejecting the recall application. Now what remains to be seen is as to whether the https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) petitioner has made out a case for recalling the earlier order permitting him to withdraw the suit.

The petitioner, as plaintiff, approached the Court first with the suit, seeking valuable relief of declaration and consequential injunction as well. The petitioner was conscious of the fact that the 1 st defendant had filed a counter claim, seeking a declaratory right in his favour, besides also recovery of possession. This is evident from the fact that the petitioner has filed a reply statement to the counter claim, as provided under Order VIII Rule 6A of CPC. Despite the pendency of the counter claim, the petitioner made an attempt to withdraw the suit. In the memo seeking withdrawal, the petitioner had mentioned that the matter has been settled between the parties. Such an averment was objected at the end of the 1st respondent/1st defendant and therefore, the memo was abandoned by the petitioner. A second memo was filed seeking permission to withdraw the suit, without any reference made to any compromise or settlement between the parties. The said memo was accepted by the Court and on the same day, the suit was dismissed as withdrawn on 11.04.2022. In view of the undertaking given by the petitioner that he would withdraw the suit, the revenue records were mutated in favour of the petitioner.

In fact, the petitioner admits to the fact that the revenue authorities, who are defendants in the suit, had objected to mutation of revenue records in his favour, citing https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) pendency of the suit and had further stated that if the suit was withdrawn, then there would be no obstacle for the revenue authorities to mutate patta in favour of the petitioner. This Court in the first writ petition filed by the 1 st respondent, has, in fact, specifically noted that even before withdrawing the suit, mutation of records was effected in favour of the petitioner, based on the undertaking to withdraw the suit.

Be that as it may, the fact remains that the petitioner has taken advantage of the withdrawal of the suit for the purposes of mutation of revenue records in his favour. The petitioner was all along aware of the pendency of the counter claim and even subsequent to 11.04.2022, when the suit was withdrawn, the trial Court proceeded to hear the counter claim.

On coming to know of the mutation in favour of the petitioner, the 1 st respondent filed W.P.No.10093 of 2022, challenging the order of the DRO, mutating revenue records in favour of the revision petitioner, without notice to the 1 st respondent. The writ petition was allowed on 08.04.2024 and the order of the DRO was quashed. Subsequently, the 1st respondent filed yet another writ petition in W.P.No.14885 of 2024, challenging the order of the District Registrar. The revision petitioner was not heard in the writ petition. However, the writ petition came to be allowed. Challenging the order of the writ Court, the revision petitioner preferred W.A.No.1913 of 2024. The writ appeal was dismissed, confirming the order of the writ Court, however, giving liberty to https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) the petitioner to workout his right before the competent Civil Court, about which I have discussed in detail herein above. Despite such liberty being granted on 09.09.2025, the petitioner did not take any immediate or diligent steps to seek recalling of the order permitting him to withdraw the suit.

In fact, the 1st respondent filed revision petition in CRP.No.19 of 2026 before this Court and by order dated 13.02.2026, this Court directed the counter claim filed by the 1st respondent to be decided expeditiously. It is only when the order was brought to the notice of the trial Court that the present applications for condonation of delay and to recall the order permitting the petitioner to withdraw the suit came to be filed. In view of the above discussion, it is clear that the revision petitioner cannot take shelter citing that the suit was withdrawn by mistake.

Firstly, the petitioner was represented by a counsel and he had legal advice. Secondly, the petitioner was aware of the fact that the counter claim was filed by the 1 st respondent which would survive, despite the withdrawal of the suit. Thirdly, not once, but two attempts were made, back to back, by the petitioner seeking withdrawal of the suit, voluntarily. Fourthly, the petitioner himself has signed the second memo seeking withdrawal of the suit dated 11.04.2022, based on which, the suit has been withdrawn. Fifthly, in view of the stand taken by the revenue authorities that if the suit is withdrawn, the revenue records would be mutated in favour of the revision petitioner, the petitioner https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) chose to withdraw the suit and took full advantage, by mutating revenue records in his favour. Sixthly, merely because the said order of mutation was set aside in the writ petition, it will not give rise to a ground for the petitioner to recall the order permitting him to withdraw the suit.

Though strong reliance has been placed on the judgment of the Hon’ble Supreme Court in Jet Ply Wood’s case, at best, I am able to see that the said proposition can be applied to the facts of the present case, only for the limited point that it is permissible for a Court to invoke the inherent powers under Section 151 of CPC and permit recalling an order of withdrawal of the suit. However, the fact of those case were entirely on a different footing. The suit was withdrawn on the assurance by the defendants in the said suit and the defendants had gone back on their assurance. In such circumstances, the Hon’ble Supreme Court held that mere absence of provision should not deny justice and consequently held the application to be maintainable under Section 151 of CPC.

As rightly contended by Mrs.S.Yogalakshmi, learned Government counsel, the power of the Court under Section 151 of CPC is unbridled and can be exercised in appropriate circumstances. However, such power cannot be exercised for the mere asking of the applicant. The conduct of the applicant certainly comes into play. For all the above reasons and detailed discussion made herein above, I am unable to see any https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) illegality or perversity in the reasoning of the trial Court in dismissing the application, clearly finding that there was total lack of bonafides on the part of the petitioner. The revision petitioner having failed in the writ proceedings, has attempted to reopen the suit. His earlier conduct in seeking withdrawal voluntarily and consciously, in order to gain benefit of mutation of revenue records in his favour, does not get wiped away, despite the liberty granted by the Hon’ble Division Bench. On the facts and circumstances, the trial Court has rightly found that the Court is not required to exercise its inherent power available under Section 151 of CPC to the benefit of the revision petitioner.

Though it has been vehemently contended by Mr.S.Subbiah, learned Senior Counsel that there is no allegation of fraud and it is only a mistake on the part of the petitioner in withdrawing the suit, I am unable to countenance the said submission for the simple reason that from the very reasoning given by the petitioner for withdrawing the suit at the first instance clearly establishes that by withdrawing the suit, the petitioner was gaining mutation of revenue records in his favour. Therefore, it cannot be termed as a mistake. It may have been a risk undertaken by the petitioner, for which he has to blame himself and suffer the consequences. After consciously and voluntarily withdrawing the suit in the year 2022 and a counter claim also being proceeded with, it is not open to the petitioner to seek recall of the order permitting him to withdraw the suit in the above narrated and discussed circumstances. For all the above reasons, I do https://www.mhc.tn.gov.in/judis ( Uploaded on: 11/08/2026 04:17:14 pm ) not find any merit in the case of the petitioner. The petitioner has not made out a proper or just cause for invocation of the inherent powers under Section 151 of CPC and the reasoning of the trial Court though assigned in the condone delay application and not in the recall application, does not deserve interference in revision.

In fine, these Civil Revision Petitions are dismissed. However, it is needless to state that it is open to the revision petitioner, despite withdrawal of the suit, to contest the counter claim on its own merits. There shall be no order as to costs. Connected Civil Miscellaneous Petition is closed.