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Ganpat Kinushet Sonar Vs. Vithal Bhikan Patil - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 411 of 1939
Judge
Reported in(1941)43BOMLR976
AppellantGanpat Kinushet Sonar
RespondentVithal Bhikan Patil
Excerpt:
.....v of 1908), order xxi11, rule 1; second schedule, para. 20; section 141--award--application to file award--withdrawal of application without obtaining permission to file suit--whether such withdrawal bars suit to enforce award--application to file award and suit to enforce award whether amount to proceedings in same subject-matter.;defendant executed a promissory note in favour of the plaintiff on june 12, 1933. there was as reference to arbitration in 1935 without the intervention of court and an award was made. the plaintiff made an application to the court to file the award under para. 20 of the second schedule of the civil procedure code, 1908. the application was registered as a suit. subsequently he applied for permission to withdraw his application which was granted. ..........xxiii, rule 1, because the plaintiff obtained no order from the court giving him liberty to file a fresh suit.2. order xxiii, rule 1, is as follows:1. (1) at any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.(2) where the court is satisfied--(a) that a suit must fail by reason of some formal defect, or (b) that there are other 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 abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.(3).....
Judgment:

Broomfield, J.

1. In this second appeal there is a question as to the construction and application of Order XXIII, Rule 1, of the Civil Procedure Code, 1908. The facts are very simple. The defendant executed a promissory note in favour of the plaintiff in June, 1933. In 1935, according to the plaintiff, there was a reference to arbitration without the intervention of the Court and an award. On June 14, 1935, the plaintiff made an application to file the award under para. 20 of the second schedule to the Code, and on September 18, 1936, he applied for permission to withdraw his application. The application was in these terms:--

Plaintiff has made an application in order to have filed an award made between plaintiff and defendant. The applicant has not to proceed with the work of the said application. The applicant has to file a separate suit in the matter of the subject of the award in the application. So he has to withdraw this application. Therefore the applicant has not to proceed with this application. Therefore permission should be given to plaintiff to withdraw the said application, each party bearing its own costs.

The order made by the Sub-Judge on this application was--

Plaintiff is permitted to withdraw the suit. He should pay the defendant his costs and bear his own.

On October 28, 1936, the plaintiff filed the suit from which this appeal arises, firstly, to enforce the award, and, secondly, to recover the amount alleged to be due on the promissory note. The trial Court and the District Judge in appeal have held that the plaintiff's suit is barred altogether by Order XXIII, Rule 1, because the plaintiff obtained no order from the Court giving him liberty to file a fresh suit.

2. Order XXIII, Rule 1, is as follows:

1. (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.

(2) Where the Court is satisfied--

(a) that a suit must fail by reason of some formal defect, or (b) that there are other 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 abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.

(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2), 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,

(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.

3. The learned counsel for the appellant-plaintiff has taken a preliminary point that the Court's order on the plaintiff's application to withdraw did in effect and substance allow him liberty to bring a fresh suit. The cases cited by Mr. Thakor in that connection--Golam Mahomed v. Shibendra Pada Banerjee (1908) I.L.R. 35 Cal. 990. Khudi Rai v. Lalo Rai (1925) I.L.R. 5 Pat. 23, and Narayana Tantri v. Nagappa : AIR1918Mad126 . are not on all fours because in those cases there was a request in the applications that liberty to bring a fresh suit should be allowed. In the present case the plaintiff announced his intention of bringing a fresh suit but he did not actually ask for liberty to bring the suit. There is perhaps something to be said for the argument that in substance the plaintiff obtained the Court's permission to bring a fresh suit, but we do not propose to deal with the case on this ground. We are clearly of opinion that in any case the plaintiff's failure to obtain the leave of the Court to bring this suit is not fatal to his suit.

4. The other points argued by Mr. Thakor are that an application to file an award is not a suit, that even if it is a suit, an application to file an award and a suit to enforce an award do not deal with the same subject-matter, so that Clause (3) of the rule would not apply, and that in any case the rule cannot bar the plaintiff's suit so far as it is a suit on the original cause of action apart from the award.

5. There are authorities binding on this Court which show that an application to file an award, although it is numbered and registered as a suit, is not a suit for all purposes, e.g. it is not a suit for the purpose of applying the rule of res judicata, Rajmal Girdharlal v. Maruti Shivram (1920) I.L.R. 45 Bom. 329 and there are several authorities of the Allahabad High Court on the same point. Nor is such an application a suit for the purposes of Section 80 of the Civil Procedure Code: Secretary of State v. Kundan Singh . As to whether an application to file an award is a suit within the meaning of Order XXIII, Rule. 1, Gauri Shankar v. Maida Koer (1904) I.L.R. 31 Cal. 516. is the only authority. It was there held that such an application is a suit within the meaning of that rule. There was no discussion of the point and authorities were not cited. But in the view we take it is not really very material whether an application to file an award is to be regarded as a suit within the meaning of this rule or not. The rule is essentially a rule of procedure, and it would seem that it would be applicable under Section 141 of the Code whether an application is to be regarded as a suit or not.

6. Supposing that the rule does apply, and speaking for myself, I am prepared to concede this, what is the consequence? It is an elementary rule of construction that a word must be given the same meaning wherever it occurs in the same enactment, and a fortiori in the same section of an enactment, unless the context forbids it. If 'a suit' in the first sentence of Clause (3) of Rule 1 of Order XXIII is to be taken to mean an application to file an award, 'fresh suit' further on in that clause must mean a fresh application to file an award, and the only effect of holding the rule to be applicable would therefore be that no second application can be made after the withdrawal of a prior application unless liberty to apply again has been reserved. That I think is probably so, but it has no relevance to the facts of the present case.

7. In connection with this point Mr. Coyajee drew our attention to an old Madras case, Subbaramien v. Ponnuswamy Chetty (1870) 5 M.H.C.R. 298. There an application had been made under Section 230 of the Civil Procedure Code of 1850. Such applications were required to be numbered and registered as suits. When the claim came on for hearing the applicant was allowed to withdraw the proceeding with liberty to bring a fresh suit and he subsequently brought another suit. It was held that the former proceeding was a suit within the meaning of SEction 97 of that Code, which is in many respects similar to the present Order XXIII, Rule 1, and that as liberty had been given to bring another suit the subsequent suit was well brought. Mr. Coyajee cited this case no doubt with the object of showing that the word 'suit' in the two places in Clause (5) of the rule where it occurs need not necessarily refer to precisely the same kind of proceeding. But it is clear on reference to Section 230 of the old Code that claim proceedings under the section which were numbered and registered as suits were in pari moteria with regular suits. The section provided that the Court should proceed to investigate the matter in dispute in the same manner and with the like powers as if a suit for the property had been instituted. It is impossible however to say that an application to file an award and a suit to enforce the award are similarly in pari materia: see Muhammad Nawaz Khan v. Alam Khan . We do not think that this case therefore is any ground for not applying what Mr. Coyajee concedes is the ordinary rule of construction, and we hold that if a suit in Order XXIII, Rule 1, can mean an application to file an award at all it must mean that wherever the word occurs. The rule cannot be construed to mean that the withdrawal of an application without liberty reserved is a bar to the institution of a suit. That is enough to dispose of this appeal, and as we have not had the advantage of hearing Mr. Coyajee on the other points I will say very little about them.

8. Even on the view, which seems to me to be impossible, that the withdrawal of an application to file an award without liberty to apply again bars a suit, it would only be a suit on the same subject-matter. There is the authority of the Privy Council in the case just referred to for holding that where an application to file an award is refused and a suit is afterwards brought to enforce the award, the two proceedings are not in respect of the same subject-matter. The position would seem to be even stronger where the application is withdrawn without any decision. A fortiori, it would seem, the plaintiff's claim for relief on the original cause of action apart from the award is not on the same subject-matter.

9. We think that the lower Courts were wrong in holding the suit to be barred. The decree of the trial Court and also that of the District Judge must be set aside and: the suit sent back for trial on the merits. The costs in the trial Court will be costs in the cause. The appellant is entitled to get his costs here and in the Court of first appeal.


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