Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 2057 (BOM)

Manohar v. Ravindra Rajaram Gawande

2019-09-05

Z.A.HAQ

body2019
JUDGMENT : Z.A. Haq, J. Heard. 2. Rule. Rule made returnable forthwith. 3. The petitioner had filed Regular Civil Suit No.76/2015 against the respondents (defendants) praying for decree for permanent injunction restraining them from undertaking any construction over the suit land and for decree for mandatory injunction directing defendants to dismantle construction already undertaken. On 17th January 2017, the petitioner had filed an application (Exh.31) seeking permission to withdraw the civil suit with liberty to file fresh civil suit. The petitioner had stated in this application that there was mistake in the plaint in referring the description of the suit field, and therefore the petitioner (plaintiff) wanted to withdraw the civil suit and file fresh civil suit after removing those defects and error in pleadings. By the order dated 17th March 2017, the learned trial Judge rejected the application (Exh.31) filed by the plaintiff. However, on 17th January 2017 itself, the petitioner had filed fresh civil suit for the same relief. Now by this petition, the petitioner has challenged the order passed by the trial Court on 17th March 2017 by which the application (Exh. 31) is rejected. 4. The learned trial Judge, while rejecting the application (Exh.31) has recorded that the plaintiff has failed to satisfy that the plaint filed by him suffers from any formal defect which may lead to dismissal of the civil suit. These parameters are required to be examined as per clause (a) of Sub-Rule (3) of Rule (1) of Order 23 of the Code of Civil Procedure and the learned trial Judge has rightly examined as to whether the plaint in Regular Civil Suit No.76/2015 suffers for any formal defect because of which the civil suit may be dismissed. However, I find that, the learned trial Judge has not considered the matter in the light of the provisions of Clause (b) of Sub-Rule (3) of Rule (1) of Order 23 of the Code of Civil Procedure, which enables the Court to allow the plaintiff to withdraw the civil suit and file fresh civil suit if the Court is satisfied that sufficient ground exists for the same. 5. 5. After examining the nature of defects in the plaint as pointed out by the plaintiff, and the reason given by the plaintiff for withdrawal of the civil suit with liberty to file fresh civil suit, I am satisfied that the plaintiff can be permitted to withdraw Regular Civil Suit No.76/2015 and to file fresh civil suit. 6. Learned advocate for the respondents, relying on the judgment given by this Court in the case of Royal Palms (India) Pvt. Ltd. & Anr., vs. The State of Maharashtra & Ors., 2016 SCCOnLineBom 5122, argued that the impugned order is in consonance with the provisions of Order 23, Rule (1)(3) of the Code of Civil Procedure, and the trial Court has not committed any error by rejecting the application (Exh. 31). This judgment considers right of a party to institute fresh petition under Article 226 of the Constitution of India after the party had withdrawn an earlier writ petition. In the present case, the petitioner is seeking liberty to withdraw the civil suit as per Order 23 Rule (1)(3) of the Code of Civil Procedure, with liberty to file fresh civil suit. 7. The only question which is required to be examined in the facts of the present case is whether permission can be granted now and if the permission is granted now, it will save, the second civil suit filed by the petitioner. The learned advocate for the petitioner has pointed out judgment given by Kerala High Court in the case of Ammini Kutty and others vs. George Abraham, (1987) AIR Kerala 246, in which it is held that such course can be adopted and post-facto permission can be granted even after institution of the second civil suit. Relying on the proposition laid down in the judgment given in the case of Ammini Kutty (supra) and in the facts of the case, the following order is passed. ORDER (i) The impugned order is set aside. (ii) The application (Exh. 31) filed by the petitioner in Regular Civil Suit No.76/2015 is allowed. (iii) The petitioner is permitted to withdraw Regular Civil Suit No.76/2015 with liberty to file fresh civil suit. (iv) The petitioner shall pay Rs.5,000/- to each of the respondent towards costs. The amount of costs shall be deposited before the trial Court within two months. Rule is made absolute in the above terms.