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Pritam Singh and ors. Vs. Ram Gopal Madan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 269 of 1980
Judge
Reported in19(1981)DLT132
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 1
AppellantPritam Singh and ors.
RespondentRam Gopal Madan Lal and ors.
Advocates: K.C. Dewan,; O.N. Aggarwal and; B.K. Gupta, Advs
Excerpt:
.....application for the grant of temporary injunction - on the question as to entitlement to file a fresh application, it was ruled that under order 43 rule 1(4) of the civil procedure code, the plaintiff was not entitled to file a fresh application for the grant of injunction on the same ground on which the previous application was dismissed - accordingly, the application of the plaintiffs for the grant of injunction to restrain the respondent was held to be not maintainable - - (3)where the court is satisfied :(a) that a suit must fail byreason 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 think fit, grant the plaintiff permission to..........march, 1980. the question thereforee is whether the plaintiffs-appellants are entitled to file a fresh application for injunction on the same grounds on which the previous application was dismissed. order 23 rule i of the code reads as under :- '1.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 i to 14 of order xxxii 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.....
Judgment:

Sultan Singh, J.

(1) This is an appeal under order 43 rule I (r) of the Code of Civil Procedure, 1908 (hereinafter called 'the Act') challenging the judgment and order of the Additional District Judge, Delhi dismissing the appellants' application under Order 39 rules 1 and 2 of the Code for temporary injunction against the respondents restraining them from proceeding with the arbitration proceedings. The respondents carry on business at Delhi while the appellants carry on business at Malout Mandi, District Faridk

(2) Learned counsel for the appellants has challenged the order of the trial court mainly on two grounds : (i) there is no dispute between the parties and hence there can be no arbitration and (ii) that the arbitration reference by the respondents by filing the claim on 15th May, 1979 before the association is invalid as the same has been filed without the consent of the appellant and without any notice to them. Learned counsel for the appellants further submits that there cannot be unilateral reference. The trial court after taking into consideration the facts of the litigation at Giddarbaha and before him came to the conclusion that there was no prima facie case in favor of the plaintiffs-appellants. After hearing the learned counsel for the parties, I do not deem it necessary to go into the question whether there is any dispute within the parties and whether there is any valid arbitration reference to the Delhi Hindustani Mercantile Association. This appeal can be disposed of on a short point. Admittedly the plaintiffs filed the application under order 39 Rules I and 2 on 8th October, 1979 wherein an ex parte injunction sought for by them was issued by the trial court. But this application was dismissed as being not pressed on 21st March, 1980. The question thereforee is whether the plaintiffs-appellants are entitled to file a fresh application for injunction on the same grounds on which the previous application was dismissed. Order 23 rule I of the Code reads as under :-

'1.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 I to 14 of order Xxxii 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 byreason 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 think fit, grant the plaintiff permission to withdraw from such suit or such part of the claim -with liberty, to, institute afresh 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.'

(3) Under sub-rule 4 a plaintiff is precluded from instituting any fresh suit in respect of the claim withdrawn by him. Thus if a plaintiff withdraws a suit, he is not entitled to file a fresh suit on the same cause of action. Similarly if the plaintiff files an application for the grant of a temporary injunction and after notice to the opposite party who has filed a reply and during the course of arguments the plaintiff withdraws the application for temporary injunction, it appears that the plaintiff is debarred from instituting a fresh application unless there has been change of circumstances since the date of dismissal of the previous injunction application. Section 141 of the Code makes the procedure applicable to the suits to all proceedings in court of civil jurisdiction. The proceedings for the grant of temporary injunction are proceedings in a civil court. Thus reading together order 23 and section 141 of the Code it appears that the present application for temporary injunction filed on 16th April, 1980 decided by the impugned order dated 15th July, 1980 is barred under sub-rule (4) of rule 1 of order 23 of the Code. On this ground alone I do not find any merit in the present appeal and I hold that the application of the plaintiffs appellants for the grant of injunction restraining the respondents from proceeding with arbitration proceedings is not maintainable. The appeal is, thereforee, dismissed but with no order as to costs.


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