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Himachal Pradesh High Court · body

2017 DIGILAW 1226 (HP)

Suman Aggarwal v. Municipal Council

2017-11-02

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. - The moot question that falls for consideration is whether the petitioner after filing a suit and thereafter having withdrawn the same with liberty to file a fresh suit on the same cause of action can be permitted to file the instant writ petition. However, before considering the question, certain admitted facts are needed to be noticed. 2. The petitioner filed a suit claiming therein the following relief:- "It is, therefore, respectfully prayed that decree of relief of prohibitory injunction restraining the defendant No.1 from renting out or delivering the possession of a shop which is being constructed over place lying vacant near the shop No.4 of the M.C. Shopping Complex to any other person except the plaintiff, itself, or through its agents, servants and legal representatives in any manner whatsoever and for further restraining the defendant No.2 from carrying any construction work over the place above mentioned, himself or through his agents, servants and legal representatives in any manner whatsoever along with relief of mandatory injunction directing the defendant No.1 to lease/rent out the said shop to plaintiff as per prior acceptance of plaintiff''s proposal by defendant No.1 or any other relief which this Learned Court deems fit may also be passed in favour of the plaintiff and against the defendants, in the interest of justice." 3. The suit was contested by the respondents, who had been arrayed as defendants by filing written statement. The petitioner even filed replication. However, before the suit could be taken to its logical end, the plaintiff filed an application under Order 23 Rule 1 (3) read with Section 151 of the Code of Civil Procedure (for short ''CPC'') with a prayer to allow the petitioner to withdraw the suit with liberty to file a fresh suit on the same subject matter and on the same cause of action. The reason for filing the said application was spelt out in paras No.2 to 4 of the application which read thus:- "2. The reason for filing the said application was spelt out in paras No.2 to 4 of the application which read thus:- "2. That the applicant/plaintiff instituted the above said civil suit on 14 October, 2013 and respondents/defendants filed their written statements on 05.12.2013 and it transpired from the written statement filed by them that the defendant No.1 i.e. Municipal Council Paonta Sahib passed a resolution dated 30.08.2013 vide which it decided to rent out the said shop to defendant No.2 on a monthly rent of Rupees 1650/ - and it also transpired from the written statement filed by the defendant No.1 that possession of the suit property stood delivered/transferred in favour of defendant No.2 on 10.09.2013. 3. That though the applicant/plaintiff disputes the genuineness and legality of said resolution and also disputes the date on which the possession of the suit property was taken over by the defendant No.2 but despite that the suit of the applicant/plaintiff became infructuous and it must fail by reason of such formal defect. 4. That in view of the fact and circumstances given above and due to change in circumstances during the pendency of the suit, it has become necessary for the applicant/plaintiff to withdraw the present suit with the leave to file the fresh suit in respect of the same subject matter." 4. The application so filed by the plaintiff was not objected to by the respondents and consequently the trial Court i.e. Civil Judge (Senior Division), Court No.1, Paonta Sahib, allowed the application vide order dated 19.06.2014 which reads thus:- "Case is taken up for today for proper order. Ld. plaintiff counsel has already filed an application under Order 23 Rule 1(3) CPC to withdraw the present suit with permission to file the fresh suit on the same subject matter. In view of no objection of ld. defendants counsel as endorsed on said application, the same is allowed. Accordingly, suit of the plaintiff is dismissed as withdrawn with liberty to file fresh suit on the same cause of action. File after due completion, be consigned to Record Room." 5. As observed above, the petitioner had withdrawn the suit by filing the application for withdrawal of the same with liberty to file a fresh suit on the same subject matter and no permission was sought to file a writ petition. 6. File after due completion, be consigned to Record Room." 5. As observed above, the petitioner had withdrawn the suit by filing the application for withdrawal of the same with liberty to file a fresh suit on the same subject matter and no permission was sought to file a writ petition. 6. It is in this background that the question of maintainability of the writ petition has been raised by the respondents. 7. It is vehemently argued by Ms.Jyotsna Rewal Dua, Senior Advocate assisted by Ms.Charu Bhatnagar, Advocate, for respondent No.2 that the filing of the application that too without any leave of the Court is a gross abuse of process of law and infact amounts to bench hunting. Even otherwise, the petitioner having chosen to withdraw the civil suit with a specific prayer for filing a fresh civil suit on the same subject matter and on the same cause of action is estopped from filing the instant writ petition. 8. On the other hand, Shri Bimal Gupta, Senior Advocate assisted by Shri Vineet Vashistha, Advocate would vehemently argue that once the suit had been withdrawn, the petitioner was entitled to avail of such remedies as were available to her under the law and merely because she had been granted a liberty to file a fresh suit on the same cause of action and on the same subject matter would not preclude her from filing the instant writ petition as it is not a case where the respondents have been taken by surprise or are being vexed twice for the same subject matter. I have heard the learned counsel for the parties and have gone through the records of the case. 9. Order 23 Rule 1 of CPC reads thus:- "l.Withdrawal of suit or abandonment of part of claim. - (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. PROVIDED that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. PROVIDED that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the court is satisfied,- a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff,- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs." 10. The principle underlying the provisions for withdrawal and abandonment is that the law confers upon a man no rights or benefits which he does not desire-invito-beneficium-non-datur though based on public policy, it is distinct from resjudicata. 11. Evidently, the petitioner had withdrawn the suit with liberty to file a fresh suit on the same subject matter and on the same cause of action and it is, thus, clear that this is not a case of abandonment or giving up of a claim by the petitioner. 11. Evidently, the petitioner had withdrawn the suit with liberty to file a fresh suit on the same subject matter and on the same cause of action and it is, thus, clear that this is not a case of abandonment or giving up of a claim by the petitioner. Therefore, the only question which is required to be considered is whether after having obtained leave and granted by the Court for filing a civil suit, the instant petition is maintainable'' To my mind, the nomenclature of the proceedings for which liberty has been granted or obtained or sought for is neither final nor conclusive and even otherwise is not decisive, particularly, in the background that this is not a case of abandonment of claim. It would be for the Court or Authority in which subsequent proceedings are initiated pursuant to the liberty granted by the Court to see and adjudicate as to whether the subsequent proceedings before it are legally maintainable. The petitioner cannot be bogged down to her statement and compelled to file a suit even though there may be equally efficacious or alternate remedies available to her. It is not a case where the withdrawal is malafide or for bench hunting purposes. Even otherwise, proceedings in a suit are essentially different from the proceedings initiated while invoking the extraordinary jurisdiction of the Court under writ jurisdiction of the Court. Therefore, the withdrawal of the suit with liberty to file the same afresh is no bar to resort to the extraordinary remedy of writ, more particularly, when the respondents have not been able to point out any prejudice having been caused to them. 12. Therefore, in such circumstances, it cannot be held that the writ petition would not be maintainable merely because petitioner had only sought the relief for filing civil suit on the same subject matter and on the same cause of action. The opposite party cannot be said to have been vexed twice for the same and even otherwise no prejudice whatsoever has been caused, much less serious prejudice can be said to have been caused to the respondents by filing of the writ petition instead of civil suit. 13. Having said so, the writ petition is held to be maintainable. The question is answered accordingly. 14. List the case for final hearing on 27.11.2017.