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Chhaganlal Pratapchand Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR1057
AppellantChhaganlal Pratapchand
RespondentState of Gujarat
Cases ReferredSeethai Achi v. Weyppa Chettiar
Excerpt:
- - 645 of 1965, withdrawn by them with liberty to bring a fresh suit on the same cause of action on 19th august, 1965. 2. a short, but interesting question which is of general importance, arises in this revision petition. it is admitted on both sides before me as well as before the trial court that the present case does not fall within the category of the suit disposed of as referred to, in item no. (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. when the withdrawal from a suit is permitted by the court with liberty to bring a fresh suit on the same cause of action, the court has.....j.m. sheth, j.1. this is a revision petition filed by the original plaintiffs under section 115 of the civil procedure code (which will be hereinafter referred to as the code), against the order passed by learned judge, city civil court, 2nd court, ahmedabad city. mr. v.r. shah (as he then was), below ex. 16, dated 9th december, 1966, rejecting the application filed by the plaintiffs for refund of the court-fees paid by them in summary suit no. 645 of 1965, withdrawn by them with liberty to bring a fresh suit on the same cause of action on 19th august, 1965.2. a short, but interesting question which is of general importance, arises in this revision petition.an application for refund was made by the present plaintiffs in view of notification no. c c c1061/7005-(i)-d, dated 4th november,.....
Judgment:

J.M. Sheth, J.

1. This is a revision petition filed by the original plaintiffs under Section 115 of the Civil Procedure Code (which will be hereinafter referred to as the Code), against the order passed by learned Judge, City Civil Court, 2nd Court, Ahmedabad City. Mr. V.R. Shah (as he then was), below Ex. 16, dated 9th December, 1966, rejecting the application filed by the plaintiffs for refund of the Court-fees paid by them in Summary Suit No. 645 of 1965, withdrawn by them with liberty to bring a fresh suit on the same cause of action on 19th August, 1965.

2. A short, but interesting question which is of general importance, arises in this revision petition.

An application for refund was made by the present plaintiffs in view of Notification No. C C C1061/7005-(i)-D, dated 4th November, 1961, issued by the Government under Section 43(2) of the Bombay Court-fees Act, 1959 (which will be hereinafter referred to as the Act). The said notification provides for refund of Court-fees paid on the plaint in certain circumstances mentioned in the Schedule to the Notification. The Schedule mentions six separate sets of circumstances under which the Court-fees paid on the plaint can be refunded. In the instant case, the plaintiffs claim refund of Court-fees on the basis of Item No. 3 referred to, in the Schedule which reads:

Suit which is got dismissed by the plaintiff for want of prosecution before settlement of issues or recording of any evidence.

If that item is applicable to the circumstances of the present case, the plaintiffs would be undoubtedly entitled to refund of the Court-fees to the extent of two-third of the Court-fees paid by them on the plaint. Item No. 4 reads:

Suit which is withdrawn unconditionally by the plaintiff (before the settlement of issues or recording of any evidence) as settled out of Court.

It is admitted on both sides before me as well as before the trial Court that the present case does not fall within the category of the suit disposed of as referred to, in Item No. 4.

3. The important question, therefore, that arises for consideration is whether it could be said that the suit which was permitted to be with drawn by the Court with liberty to bring a fresh suit on the same cause of action can be said to be a suit got dismissed by the plaintiffs for want of prosecution. If answer is given to that question in the affirmative, the petitioners would be undoubtedly entitled to refund of the two-third of the Court-fees.

4. Mr. S.K. Zaveri. learned Advocate appearing for the petitioner, urged that the disposal of the suit in this manner would tantamount to getting the suit dismissed by the plaintiffs for want of prosecution. It was urged by him that the scheme of the Code recognized only two modes of disposal of the suit--(i) by decreeing the suit, and (2) by dismissal of the suit. No third mode of disposal of the suit was contemplated by the Code. In the instant case, the suit was not decided on merits. The suit came to be disposed of as the petitioner withdrew the suit, no doubt, with the permission to bring a fresh suit on the same cause of action. No relief was granted by the Court. It was, therefore, submitted that it could be said that the suit was got dismissed by the plaintiffs for want of prosecution. In support of his arguments, he invited my attention to certain decisions to which 1 will make reference at an appropriate stage.

5. He invited my attention to the wording of Order 23, Rule 1 of the Code and urged that Rule 1 of Order 23 of the Code dealt with 'Withdrawal of it or abandonment of part of claim'. Sub-rule (1) of it dealt with withdrawal of the suit and Sub-rule (2) of it dealt with withdrawal from suit with a liberty to institute a fresh suit on the same cause of action. In both the categories referred to, in those two sub-rules, undoubtedly, there was withdrawal. It was, therefore, submitted by Mr. Zaveri that no distinction can be made as regards grant of refund of Court-fees in two categories, (i) whether the suit is withdrawn without liberty to bring a fresh suit on the same cause of action, and (2) where there is withdrawal from the suit with liberty to bring a fresh suit on the same cause of action. According to Mr. Zaveri, there is withdrawal from the suit in both the categories and eventually, there is dismissal of the suit and that dismissal of the suit is really on account of non-prosecution of the suit.

6. Order 23, Rule 21 of the Code reads:

(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.

If we bear in mind the difference in the language used in Sub-rule (1) of Rule 1 of Order 23 of the Code and Sub-rule (2) of it, it appears that in case of withdrawal under Sub-rule (1). there is withdrawal of suit. In case of withdrawal under Sub-rule (2) there is withdrawal from a suit and furthermore, it is with liberty to institute a fresh suit on the same cause of action. The language used in Sub-rule (1) makes it clear that it is an unquestionable right of the plaintiff to withdraw the suit. Under Sub-rule (2) there is no such absolute right vested in the plaintiff. It is only if the Court permits to withdraw from such suit with liberty to institute a fresh suit on the same cause of action, there is such withdrawal.

7. Sub-rule (3) of Rule 1 of Order 23 deals with consequences of withdrawal from a suit without the permission referred to in Sub-rule (2). It reads:

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.

Order 23, Rule 2 of the Code:

In any fresh suit Instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.

When the withdrawal from a suit is permitted by the Court with liberty to bring a fresh suit on the same cause of action, the Court has jurisdiction to grant such permission only if the conditions referred to, in Sub-rule (2) of Rule 1 of Order 23 of the Code are satisfied. It is not the plaintiff's absolute right to get such withdrawal. It is only if the Court is satisfied that a suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit or part of a claim, the Court is empowered to grant permission to such withdrawal with liberty to institute a fresh suit on the same cause of action on such terms as thought fit by the Court, It, therefore, presupposes that the Court has to apply its mind and find out whether the conditions referred to, in this Sub-rule (2) exist which would empower the Court to exercise such power. So far as withdrawal of a suit is concerned as contemplated under Sub-rule (i), it is the absolute right of the plaintiff and the Court has not to apply its mind except in certain specified cases with which we are not concerned in the present case.

8. To understand and appreciate the rival contentions at the Bar, I propose to refer to the scheme of the Code which would indicate the legislative intent to a certain extent before I refer to the authorities cited at the Bar.

9. Section 2(2) of the Code defines 'decree'. The definition includes by a deeming fiction the rejection of a plaint. But it does not include any order of dismissal for default. Section 12 reads:

Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

Order 7, Rule 10 of the Code deals with 'Return of plaint', and order 7, Rule 11, deals with 'Rejection of plaint'. It reads:

The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action:

(b) where the relief claimed in undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law.

This Order 7, Rule 11 refers to different circumstances when the plaint is to be rejected.

10. Order 7, Rule 13 of the Code indicates.

The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

11. Order 9, Rule 2 of the Code indicates that the Court is empowered to order dismissal of suit where summons is not served in consequence of plaintiff's failure to pay costs. It reads:

Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal charges if any, chargeable for such service, the Court may make an order that the suit be dismissed.

12. Rule 3 of Order 9 of the Code empowers the Court to dismiss the suit where neither party appears when the suit is called on for hearing. A perusal of these two rules indicates that there could be a dismissal of suit even though the suit is not decided on merits. But it is significant to note that the Legislature, by engrafting Rule 4, in this Order, has made a clear indication that where a suit is dismissed under Rule 2 or Rule 3, the plaintiff subject to the law of limitation is entitled to bring fresh suit or he is entitled to apply to set aside the Order.

13. Order 9, Rule 5 of the Code empowers the Court to dismiss the suit where the plaintiff, after a summons is returned unserved, fails to apply for three months for fresh summons.

14. Order 9, Rule 8 of the Code empowers the Court to dismiss the suit where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, in the circumstances referred to, therein.

15. Order 9, Rule 9 of the Code indicates that where a suit is wholly or partly dismissed under Rule 8, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. But he is entitled to apply for an order to set the dismissal aside on the grounds referred to therein This order 9 refers to the power of the Court to dismiss the suit even though the suit is not decided on merits in the circumstances referred to, in the aforesaid different rules. In order 23, there is no such specific reference of dismissal of a suit when the suit is withdrawn under Sub-rule (1) or is permitted to be withdrawn with liberty to bring a fresh suit on the same cause of action under Sub-rule (2) of it.

16. Order 22, Rule 3 Sub-rule (2) of the Code refers to the circumstances when the suit will abate. That is also one of the modes of disposal of the suit. It cannot, therefore, be said that the legislature has contemplated disposal of suits only by two modes, (1) by decreeing the suit and (2) dismissal of the suit, as has been urged by Mr. Zaveri.

17. Rule 8 of Order 22 of the Code reads:

(1) The insolvency of a plaintiff in any suit which the assignee or recover might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or unless for any special reason the Court otherwise directs, to give security for the costs thereof within such time as the Court may direct.

(2) Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff's estate.

It is significant to note that Rule 9 of order 22 of the Code deals with, 'effect of abatement or dismissal' under this order.

18. Sub-rule (i) of that Rule which is material for our purposes, reads:

Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

These provisions make it quite clear that the legislature has all along made a distinction between an abatement and dismissal.

19. We will now refer to certain provisions of Order 33 of the Code. Order 33, Rule 5 of the Code mentions the grounds when an application for permission to sue as a pauper can be rejected. Order 33, Rule 11 of the Code reads:

Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed.

(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fee or postal charges if any, chargeable for such service, or

(b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff, to the suit, to pay the Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.

A close reading of this rule indicates that the legislature has kept in mind the distinction between the suit withdrawn and the suit dismissed. Even when the suit is dismissed not on merits, but is dismissed on account of default or the suit is dismissed as the summons to the defendant has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fee or postal charges, chargeable for such service, Court is required to order recovery of Court-fees.

20. Rule 11A of Order 33 of the Code reads:

Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff the Court shall order that the amount of Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper shall be recoverable by the State Government from the estate of the deceased plaintiff.

It thus indicates that this order 33 deals with the question regarding the recovery of Court-fees from the plaintiff who has been allowed to file a suit in forma pauperis in cases where the plaintiff fails in the suit or is dispaupered or the suit is withdrawn or is dismissed on the grounds referred to above, or the suit abates. It is, therefore, indicative of the position that the legislature has kept in mind different modes when the suit may terminate or come to an end. It cannot, therefore, be said that there are only two modes of disposal of suits contemplated as has been vehemently urged by Mr. Zaveri. The learned trial Judge was, therefore, quite justified in observing in his order as under:

It is true that when the Court decides that it will grant no relief to the plaintiff, it makes an order dismissing the suit. Therefore, the dismissal of a suit of a plaintiff necessarily involves a decision of the Court that it will not grant any relief to the plaintiff, on the basis of the plaint brought before it. But it is not only the case of dismissal of a suit wherein the plaintiff fails to get any relief's from the Court. There are also other causes which lead to the same consequences, namely, the denial to the plaintiff of any of the relief asked for by him in the plaint. A suit may be dismissed under provisions of Order IX, Rules 2, 3, 4 and 6 for failure to take some steps necessary for further proceeding with the suit. A suit may also be dismissed under Order IX, Rule 8 for default of appearance by a plaintiff. A suit may also be dismissed after it is heard on merits. These are all instances of dismissal of a suit, which result in denial of any relief to the plaintiff. There are, however, other modes also in which the suit is disposed of and which disposal also results in denial of any relief to the plaintiff. Such modes of disposal of suits are abatement of suit under the provisions of Order XXII and withdrawal of suits under Order XXIII, Rule 1 of the Civil Procedure Code. It is not, therefore, correct to say that in all cases where the plaintiff is denied the relief asked for, by him in the plaint, it necessarily occurs in a dismissal of a suit. The denial of any relief to the plaintiff can also occur without there being a dismissal of a suit. I am, therefore, not prepared to accept the argument on behalf of the plaintiff that because the Court has denied the relief to him, there is a dismissal of the suit.

The Civil Procedure Code makes a clear distinction between the various modes in which a suit may come to an end in a Court. Where a suit comes to an end by dismissal, the Civil Procedure Code has stated so expressly; where a suit comes to an end by abatement, the Civil Procedure Code does not say that thereby the suit is dismissed. Similar is the case in respect of withdrawals also.

21. In my opinion, these observations made by the learned trial Judge appear to be quite correct, on examining the scheme of the Code.

22. In Smt. Saraswati Bala v. Surabala Desai : AIR1957Cal57 . Bachawat. J. (as he then was), speaking for the Division Bench of the Calcutta High Court, observed:

If the plaintiff desires to withdraw his suit and does not want permission to institute a fresh suit he is at liberty to do so, The Court has no discretion in the matter and the plaintiff is entitled to withdraw the suit as a matter of right. The consequences of withdrawal are mentioned in Order XXIII, Rule 1, Sub-rule (3). The plaintiff withdrawing the suit without the permission of the Court is liable for such costs as the Court may award and is also precluded from instituting any fresh suit in respect of the subject-matter of the suit. The withdrawal of the suit does not amount to dismissal of the suit for non-prosecution or to dismissal of the suit at all. The order recording the withdrawal of the suit is not a decree.

If the ratio of this decision is accepted as a correct ratio, it is evident that the concept of withdrawal of the suit is quite different from that of a dismissal of the suit for non-prosecution or the dismissal of the suit at all.

23. In para 9, while referring to certain rules framed by the Calcutta High Court for calculation of fees payable to legal practitioners, the following observations have been made.

Rule 721 applies to a case where the suit is either dismissed upon merits or is decided in favour of the defendant. It is to be noticed that Rules 717 and 720 apply to a case only where the plaintiff succeeds. Rule 718 specifically provides for cases where the suits included in Rule 717 are settled, withdrawn, compromised, decided on admission of claim or dismissed for default. There is no specific provision in the rules providing for cases where suits not included in Rule 717 are withdrawn. The Rules however are intended to be exhaustive and to deal with all suits. In this view of the matter we think that the words 'to be decided in favour of the defendant' in Rule 721 ought to be given a wide interpretation. In our opinion, the word 'decided' means 'disposed of.' Where a suit is withdrawn, there is no adjudication of the disputes in the suit The suit is however, finally disposed of as a result of the withdrawal. In our opinion, therefore, where the plaintiff withdraws a suit not included in Rule 717, Rule 721 applies and the fees of the defendant's pleader ought to be calculated in accordance with Rule 721.

24. Mr. Zaveri for the petitioner, invited my attention to certain observations made be the Supreme Court in Patel Chunibhai Dajibhai v. Narayanrao Khanderao Jambekar 6 Gujarat Law Reporter 742, in support of his argument that the concept of withdrawal of the suit is not different from that of the dismissal of the suit, meaning thereby, that the withdrawal of the suit tantamount to dismissal of the suit. His Lordship Sarkar, J., in his differing judgment, in para 16 observes:

It might be somewhat unfortunate that the landlord withdrew the applications filed before March 31, 1957 pursuant to the notice under Section 51. It might be that the landlord would have succeeded on merits in them. As they were withdrawn they must in law be deemed to have been rejected.

These observations do not in terms state that as these applications were withdrawn, it would mean that they were dismissed. It is only stated that as they were withdrawn, they must in law, be deemed to have been rejected.

25. His Lordship Bachawat, J., in the majority judgment, at page 752 observes in this behalf as under:.subsequently on March 1, 1958, the appellant must be deemed to have purchased the lands 'in view of the withdrawal and consequential rejection of the previous application filed under Section 29, read with Section 14...

These observations only go to indicate that in view of the withdrawal, there will be consequential rejection. These observations do not go so far as to indicate that the withdrawal of the suit would tentamount to the dismissal of the suit. Even if we assume for the sake of argument that the withdrawal of the suit without permission to bring a fresh suit on the same cause of action, could be deemed to be in law the dismissal of the suit as the litigation finally ends, as the plaintiff in case of such withdrawal of the suit is precluded from bringing a fresh suit on the same cause of action, the further important question will still survive whether the withdrawal from a suit with liberty to bring a fresh suit on the same cause of action could be deemed to be in law the dismissal of the suit. In my opinion, such withdrawal from a suit could never be deemed to be a dismissal of the suit. Such withdrawal could not be equated with the dismissal of the suit. The obvious reason is that the litigation does not end. The plaintiff withdraws from the suit as the suit is likely to fail on account of some formal defect or for such analogous grounds, with liberty to bring a fresh suit on the same cause of action. When such withdrawal is permitted, the effect is that in the eye of law there is no such suit filed.

26. This conclusion of mine gets support from a Full Bench decision of the Calcutta High Court in Becharam Choudhuri v. Purna Chandra Chatterji : AIR1925Cal845 . Suhrawardy, J., in his judgment at page 841 observes:

By giving liberty to bring a fresh 'suit' 1 take it that the 'Revenue Officer' meant to permit the applicant to present a fresh application before him. What is the effect of such an order? When as it is allowed to be withdrawn with leave to bring a fresh suit under Order 23, Civil Procedure Code, it should be regarded as never broughi. It is available for no purpose. It does not save or give fresh start to limitation; nor does it affect a fresh cause of action.

27. In Bhimangouda v. S.I. Patil A.I.R. 1969 Mysore; 178, a Single Judge of the Mysore High Court, at page 180, observes:

The question for consideration, therefore, is what would be the position if a suit filed before a Civil Court was withdrawn with liberty to bring a fresh suit on the same cause of action. 1 am inclined to hold that in such cases the suit is to be deemed as not being filed by the plaintiff at all. It is clear when a Court grants leave to file a fresh suit on the identical cause of action the withdrawn suit has no existence in the eye of law. It is available for no purpose and the parties are relegated exactly to the same position, which they occupy before the suit was brought.

In view of that conclusion of his, it was held that though a particular claim was omitted in the previous suit, there would be no bar under the provisions of Order Rule 2 of the Code in regard to that claim.

28. In the Secretary of State for India in Council v. Bhagirathibai I.L.R. 31 Bombay 10, a Full Bench of the Bombay High Court has observed:

If a plaintiff, who has been permitted to sue as a pauper, withdraw from the suit without permission under Section 373 of the Civil Procedure Code (Act XIV of 1882) as the result of a compromise by which he obtained a substantial part of the relief claimed, he does not succeed in the suit within the meaning of Section 411 but he fails in the suit within the meaning of Section 412 of the Civil Procedure Code.

An argument advanced on behalf of the Government in that case was that the Government was entitled to Court-fees in every suit which was brought to a termination without reference to the mode in which it might have been disposed of, though it was wrong to hold that the success or failure mentioned in Sections 411 and 412 of the Code meant an adjudicated success or adjudicated failure a qualification not contemplated by the Legislature, that when the plaintiff withdrew without permission to bring a fresh suit, she obviously failed in the suit within the meaning of Section 412 of the Civil Procedure Code, and that the plaintiff having succeeded in getting some relief from the defendants in respect of her claim she should be deemed to have succeeded in the suit to that extent within the meaning of Section 411. It was observed:

It cannot be said, that where a plaintiff withdraws from a suit without obtaining any advantage by way of compromise outside the suit, that he has succeeded in the suit.

Nor do we think that it is a proper construction of Section 411 to say that a plaintiff succeeds in the suit where the withdrawal has been in consequence of an advantage gained by him outside the suit. The inconvenience of holding otherwise is obvious.

It has been further observed:

It may be that she has obtained a substantial advantage; but it has not been in the suit. The only order in the suit has been that which is equivalent to a dismissal of the suit.

No doubt, in this decision the Full Bench of the Bombay High Court has observed that such withdrawal on account of settlement outside the Court would be equivalent to a dismissal of a suit. It will be significant to note that it was a case of withdrawal of a suit as contemplated under Sub-rule (1) and it was not withdrawal from a suit with liberty to bring a fresh suit as contemplated by Sub-rule (2) of Rule 1 of Order 23 of the Code. By the relevant provisions of Order 33 to which 1 have already made reference, in this new Code the Legislature, to remove any such doubt, has laid down that in cases of such withdrawal and in cases of dismissal on the grounds mentioned therein, even though the dismissal of the suit is not on merits, the plaintiff who was allowed to file a suit in forma pauperis is liable to pay the necessary Court-fees on the plaint.

29. In Shidramappa Mutappa Biradar v. Mallappa Ramchandrappa Biradar I.L.R. 55 Bombay 206, a Division Bench of the Bombay High Court has observed:

Under Order XXIII, Rule ] of the Civil Procedure Code, 1908, where a plaintiff is allowed to withdraw a suit and leave is granted to bring a fresh suit on condition that the plaintiff paid the defendant's costs, the plaintiff is precluded from bringing a second suit unless the costs are paid before the institution of the second suit. If a second suit is instituted without paying the costs of the first suit and leave is granted to withdraw that suit with liberty to bring a fresh suit such leave will not be valid in law and the fresh suit will not be maintainable even if the costs of the first suit are paid before the institution of the fresh suit.

This decision only indicates that the view taken by the Madras High Court in Seshayya v. Subbayya 47 Madras Law Journal 646 was approved and followed and the view of the Calcutta High Court in Shital Prosad v. Gaya Prosad 59 Calcutta Law Journal 529 was not followed. The view taken by the Madras High Court was:

As the withdrawal of the suit does not require the permission of the Court, it must be taken that the first suit is withdrawn when the order is passed and that the permission granted refers only to the filing of the subsequent suit on certain conditions, and that if the first suit was considered as pending, it could be open to the plaintiff instead of complying with the conditions of the permission, to go to the Court and demand that the trial on the first suit should be proceeded with, however long the interval might be.

It was observed by the Full Bench of the Bombay High Court:

I am inclined to agree with the view of the Madras High Court and most respectfully dissent from the view of the Calcutta High Court. When once a suit has been withdrawn, it is no longer pending, and the permission given by Court relates to the bringing of the fresh suit.

This decision, in my opinion, does not throw any light on the question that arises for our consideration. It only indicates that under order 23, Rule 1, Sub-rule (1) the plaintiff has an absolute right to withdraw his suit if he likes and the permission granted under order 23, Rule 1, Clause (2) relates not to the withdrawal but to the right to bring a fresh suit.

If the plaintiff simply wishes to withdraw from a suit he can do so without asking for any permission from the Court. But if he wishes to withdraw it with liberty to institute a fresh suit in respect of the same subject-matter, he has to ask for permission from the Court, and it could be given on such terms as it thinks fit. The permission relates not to the withdrawal from the suit but to the filing of another suit.

30. In Jaijibai Pestonji v. Bhikhibai Chandulal A.I.R. 1941 Bombay 290 Divatia, J., has taken a similar view observing as under:

The view accepted by the Bombay High Court is that when once a suit has been withdrawn, it is no longer pending, and the permission given by the Court relates to the bringing of the fresh suit. A suit should be regarded as having been withdrawn when an order is made by the Court on the application to withdraw. This order, therefore, terminates the suit, although it is not a decree within the meaning of the Civil Procedure Code.

31. These observations made by Divatia. J. at page 292 only indicate that when such withdrawal is ordered, that order terminates the suit. It does not mean that there is a dismissal of the suit. This decision, therefore, relied upon by Mr. Zaveri do not, in my opinion, lend support to his arguments.

32. Another decision of the Bombay High Court relied upon by Mr. Zaveri was a decision in Yeshwant Goverdhan v. Totaram Avasu : AIR1958Bom28 . It is observed therein:

It is true that Order 23, Rule 1 does not require in terms that the Court should make an order in case in which the plaintiff withdraws his suit without any permission to bring a fresh suit. But under Order 23, Rule 1 the Court has to make an order about costs, which suggests that the Court has to make an order after the plaintiff withdraws his suit. Moreover, the consequence of the plaintiff, withdrawing his suit, is to debar the plaintiff from instituting any fresh suit in respect of the subject-matter or part of the claim withdrawn by him. Surely, if that is the consequence of a withdrawal, the proceedings before the Court must show that the plaintiff has withdrawn either his suit or part of his claim.

In my opinion, the ratio of this decision is that there must be some order on the record to indicate that the suit has been disposed of in a particular manner. Till such an order is made, the plaintiff would be at liberty to withdraw his prayer regarding the withdrawal of the suit. That was the question agitated in that case and it was observed that in law the true position is that it is open to a plaintiff to withdraw his application for withdrawal of his suit, so long as the withdrawal has not become effective by on order of the Court.

33. In Usin v. Ma Ma Lay A.I.R. 1941 Rangoon 118, the relevant observations made at page 119 are:

At the trial the wife sought leave to amend her pleading; she wanted to bring an action for a declaration that the marriage was no longer subsisting. Leave to do this was refused to her, the learned Judge pointing out that she was seeking to substitute a new and entirely different cause of action against the defendant. The wife thereupon offered to lead evidence in support of her suit for divorce and it was dismissed because she did not choose to pursue it on the unamended plaint. // is not quite right to say, as we were asked to do, that it was dismissed on the footing that the marriage had already been dissolved. There was no finding to that effect; it was dismissed for want of prosecution. The learned Judge was asked to give leave to the plaintiff under Order 23 to file a fresh suit. He stated that if it was necessary for him to give leave (which he doubted) he would do so. It seems that no authorities on this point were cited to him, but a trial Judge cannot give leave to a plaintiff to file a fresh suit upon the dismissal of an earlier suit but only upon its withdrawal. The plaintiff did not withdraw her suit, but it was dismissed. And having had it dismissed she could not bring a fresh suit on the same cause of action.

These observations indicate difference in consequences that flow when there is withdrawal of the suit and when there is dismissal of the suit.

34. In Mulla's Code of Civil Procedure, 13th Edition, under the caption--'Dismissal of suit coupled with liberty to bring a fresh suit'--the comments made are:

There is no power in the Courts of India to dismiss a suit with liberty to the plaintiff to bring a fresh suit for the same matter, and obviously a Judge cannot give leave to file a fresh suit to a plant if whose suit is dismissed for want of prosecution.

This opinion expressed also lends support to my conclusion that when the plaintiff is allowed to withdraw from the suit with liberty to bring a fresh suit on the same cause of action, it cannot be said that a suit is got dismissed for want of prosecution.

35. In M/s. Mulcts Rai v. K.B. and Co. : [1967]3SCR886 it has been observed:

The short question that, in these circumstances, falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed. The language of Order 23, Rule 1, Sub-rule (1), Civil Procedure Code, gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under Sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under Sub-rule (3) of that rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, Civil Procedure Code or a counter-claim may have been filed if permissible by the procedural law applicable to the proceedings governing the suit.

36. Reliance was placed before the Supreme Court on behalf of the appellant on the views expressed by the Division Bench of the Madras High Court in Seethai Achi v. Weyppa Chettiar : AIR1934Mad337 , where the Court held:

'Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have recognised to this general rule. In suits for partition, if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit'.

This decision of the Supreme Court also does not indicate that when the plaintiff withdraws from the suit with liberty to bring a fresh suit on the same cause of action, the Court has to pass an order to dismiss the suit for want of prosecution. As said earlier by me, when the plaintiff is permitted to withdraw from the suit with permission to bring a fresh suit on the same cause of action, the consequence of it is that there was no suit filed in the Court as has been observed by the Calcutta High Court and the Mysore High Court in the decisions referred to earlier. No doubt, in such withdrawal also, there is termination of a suit. As said earlier, there could be termination of suit on several grounds. In all cases of termination of suits where no relief is granted or where no question of granting any relief survives, it cannot be necessarily said that there is a dismissal of the suit One has to bear in mind the distinction between the withdrawal of a suit as contemplated by Sub-rule (1) of Order 23, Rule 1 of the Code and withdrawal from the suit with liberty to bring a fresh suit on the same cause of action. It could be said that in the withdrawal of suit under Sub-rule (1), the plaintiff out of his own volition, requests the Court to dismiss the suit. It could, therefore, be said with some force that in such withdrawal, he got the suit dismissed for want of prosecution. One could plausibly urge that position in cases of such withdrawal. In cases of withdrawal from a suit by the plaintiff as contemplated under Sub-rule (2). what the plaintiff does is that he prays for withdrawal from such suit with liberty to bring a fresh suit on the same cause of action. It is for the Court to decide judicially whether such permission could be granted. If the Court does not grant such permission, there will not be any withdrawal of the suit automatically. No doubt, the plaintiff can withdraw from a suit as contemplated by Sub-rule (1) even after such permission is refused to him. Such withdrawal under Sub-rule (2) in my opinion, cannot by any stretch of imagination, be equated with the position of plaintiff getting the suit dismissed for non-prosecution.

37. Examining the question from any point of view, the only inescap able conclusion is that in cases of such withdrawal from suit with liberty to bring a fresh suit on the same cause of action it cannot be said that the suit is got dismissed by the plaintiff for want of prosecution even though such withdrawals do terminate the suit and the suit stands disposed of. The learned trial Judge has, therefore, in my opinion, rightly come to the conclusion that the petitioners are not entitled to claim refund as their case cannot be said to be covered by Item No. 3 of the aforesaid Government Notification. The result is that the revision petition fails.

Taking into consideration that there was no clear authority on this point and the question was a debatable one, it will be proper and just to order each party to bear its own costs in this revision petition.

The revision petition is dismissed. Each party is ordered to bear its own costs in this revision petition. Rule is discharged.


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