Calcutta High Court (Appellete Side)
Shyam Sundar Jalan vs R.K.P. Udyog Limited & Ors on 17 April, 2023
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IN THE HIGH COURT AT CALCUTTA
(Civil Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
C.O. 230 of 2023
Shyam Sundar Jalan
Vs.
R.K.P. Udyog Limited & Ors.
For the Petitioner :Mr. Arijit Bardhan, Adv.
Mr. Arindam Ghosh, Adv.
Mr. Raunak Shah, Adv.
For the Opposite parties :Mr. Chayan Gupta, Adv.
Mr. Rittick Chowdhury, Adv
Mr. Shoham Sanyal, Adv
Heard on : March 27, 2023
Judgment on : April 17, 2023
Bibhas Ranjan De, J.
1. This revision application has been filed assailing the Order No. 28 dated 30.11.2022 passed by the Learned Additional 2 District Judge, 6th Court, Alipore in connection with Arbitration Execution Case No. 261 of 2019.
2. In this revision application the issue, high on the list, is that whether Execution Case being no. 261 of 2019 was filed after 18 years of the award i.e beyond the period of limitation prescribed by the Article 137 of the Limitation Act. Background Facts:-
3. On 23.12.2000 opposite party/decree holder obtained arbitral award on 23.12.2000 and one Title Execution No. 13 of 2002 was filed before the Court of Learned Civil Judge (Senior Division), 4th Court, Alipore. During pendency of that execution case opposite party/decree holder filed an application under Section 151 of the Civil Procedure Code on 04.10.2018 with a prayer for withdrawal of the execution case for filing before the proper forum in terms of Provision of Section 2 (1) (e) of the Arbitration and Conciliation Act, 1996.
Though opposite party/decree holder incorporated the prayer for filing the same before the proper forum in paragraph 15 of the application dated 04.10.2018 but at the time of passing order on 29.06.2019 Learned Judge only allowed the prayer for withdrawal ignoring the prayer for filing the execution case 3 before the forum having jurisdiction. However, on 01.07.2019 opposite party/decree holder filed the Arbitration Execution Case being no. 261 of 2019 before the Learned District Judge who then transfer the same to the Additional District Judge, 6th Court, Alipore for disposal.
4. Learned advocate, Mr. Arijit Bardhan, appearing on behalf of the petitioner/ judgment debtor has submitted that subsequent Execution Case being no. 261 of 2019 was filed after 18 years of the award following the order of learned Civil Judge, Senior Division, 4th Court, Alipore that too without giving any liberty to file afresh.
5. In support of his contention Mr. Bradhan relied on a case of Premchand and another Vs. Sharan Singh reported in 2017 SCC onLine P & H 4139. Mr. Bardhan has further relied on a case of Sugarbai M. Siddiq and othes Vs. Ramesh S. Hankare (dead) by Lrs. reported in (2001) 8 Supreme Court Cases 477.
6. In opposition to that, learned advocate, Mr. Chayan Gupta, appearing on behalf of the opposite party/decree holder has contended that petition dated 04.10.2018 clearly speaks the prayer for liberty to file execution case before the appropriate 4 forum having jurisdiction. In support of his contention, he relied on a case of Chandrakant pandurang Shingade and another Vs Walchand Gulabchand Bora and another reported in 2019 SCC Online BOM 1669. Mr. Gupta has further relied on a case of Sukumar Banerjee vs Dilip Kumar Sarkar and others reported in 1981 SCC OnLine Cal 89. Mr. Gupta has further relied on a case of Thadi Konda Veeraswami Vs. Thullum Peda Lakshmudu and others reported in 1950 SCC OnLine Mad 331.
7. In Premchand (supra) Hon'ble Court dealt with a different facts and proposition of law as follows:-
"[2]. Brief fact are that respondent filed a civil suit for mandatory injunction against the petitioners vide civil suit No.303 of 18.04.1995 titled 'Swaran Singh vs. Prem Chand and another'. The said suit was decreed vide judgment and decree dated 06.09.2001 by the Civil Judge (Jr. Divn.) Khanna. The 1 of 7 defendants were directed to hand over the vacant possession of the suit property as detailed in the headnote of the plaint within a period of two months, failing which the plaintiff was held entitled to recover the possession in accordance with law. The suit was decreed for recovery of Rs.800/- per month instead of Rs.3,000/- per month towards use and occupation of the suit land for the period from 15.11.1992 to 31.03.1995. The said judgment and decree was affirmed in appeal by the Addl. District Judge, Ludhiana vide judgment and decree dated 5 16.04.2003. Regular Second Appeal No.3547 of 2003 filed by the petitioners against the judgments and decrees of the Courts below was also dismissed by the High Court vide judgment dated 14.09.2014.
[10]. Once the fresh execution was allowed to be filed with proceedings of the earlier execution intact, the exemption as granted under Order 21 Rule 22 CPC in the earlier execution would again come into being so as to keep the notice qua judgment-debtors exempted on the same terms and conditions. The permission granted by the Court for keeping the proceedings intact for filing the fresh execution is the differentia which makes the present case to be distinct from other cases in which fresh execution can be held to be barred as law of limitation is not affected by the first execution."
8. Sugarbai M. Siddiq (supra) dealt with the principle relating to jurisdiction of the High Court under Article 227 of the Constitution as follows:-
"6. There can be little doubt that in an application under Article 227 of the Constitution, the High Court has to see whether the lower courts/tribunal has jurisdiction to deal with the matter and if so, whether the impugned order is vitiated by procedural irregularity; in other words, the court is concerned not with decision but with decision making process. On this ground alone the order of the High Court is liable to be set aside."
9. In Chandrakant pandurang Shingade (supra) the Provision of Rule 3 of the Order 23 Civil Procedure Code was dealt with as follows:-
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"3. It is applicant's case that the Respondent-Plaintiff had instituted Summary Suit No. 30 of 2007 (hereinafter called 'previous suit') in the Court of Civil Judge, Senior Division, Baramati, but he withdrew it in pursuant to order dated 09.10.2007. It reads as under :-
"Heard the learned counsel for the plaintiff. Perused the application. The plaintiff wants to withdraw the suit converting its nature in Special Civil Suit. I find substance in his submission. The permission is accorded to withdraw the suit. The documents and stamp be returned to the plaintiff as prayed for."
4. It is applicant's case that soon thereafter Respondent instituted Special Civil Suit No. 128 of 2007 on 20.02.2008 on same cause of action, as was in the previous suit. The applicant would contend that the previous suit was withdrawn by the Plaintiff unconditionally without liberty to institute a fresh suit in terms of Rule 3 r/w. Rule 4 and Order 23 of the CPC. The applicant would therefore contend that in absence of expressed liberty to institute a fresh suit, subsequent suit (present subject suit) was not maintainable, and thus sought for rejection of plaint under Order 7, Rule 11(d) of CPC. Prachi Potdar Sr. No. 25 CRA 264 of 2014.odt Learned Judge rejected the said application holding that previous suit was permitted to be withdrawn, with liberty to institute a fresh suit. Aggrieved by the order dated 23.01.2014, this application is preferred." 7
10. Sukumar Banerjee (supra) observed as follows:-
"5. It appears that Title Suit No. 284 of 1977 was permitted to be withdrawn by the learned Munsif. The plaintiff made a prayer for liberty to bring a fresh suit. No order was given thereon, but that prayer was not refused. In the Bench case of Golam Mahomed v. Shibendra reported in (1908) ILR 35 Cal 990 at p. 995, it has been stated that when the plaintiff files an application to withdraw from the suit with liberty to sue afresh, on which an order was passed on the same date giving permission to withdraw the suit and although nothing was said in that order as to the plaintiff's liberty to institute a fresh suit on the same cause of action, that order ought to be read along with the application, on which it was passed. It has already been indicated that that prayer was not refused. Hence it is held that that order has the effect of granting permission to the plaintiff with liberty to sue afresh on the same cause of action."
11. Thadi Konda veeraswami (supra) dealt with the law regarding withdrawal of the suit under Order 23 Rule 1 of the CPC as follows:-
"1. The question involved in this civil revision petn. is very simple, namely, whether where a pltf. files a petn. to withdraw the suit with permission to file a fresh suit regarding the same subject- matter under Order 23, Rule 1 (2), C. P. C., the Ct. has got the right to dismiss the petn. telling him that he might withdraw the suit if ho wants but that it will not give him permission to file a fresh suit regarding the same subject-matter. The lower Ct. is said to have dismissed the suit (o. S. No. 95 of 1944) later on, but we are not 8 concerned in this civil revision petn. with this alleged later order of dismissal, which is not filed here, on a subsequent unconditional withdrawal or non-prosecution of the suit. I have absolutely no doubt that the lower Ct. had the right & jurisdiction to pass an order it did. The law regarding the withdrawal of a suit under Order 23, Rule l, C. P. C. ia well settled. Order 23, Rule l (1) gives the pltf. the liberty to withdraw from a suit unconditionally on finding it unsustainable, or for any other reason. No leave or order is necessary for this. See Lakshmanan v. Muthayya, 40 M. L. J. 126 & Mahant Biharidasji v. Parushotham, 32 Bom. 345 : (10 Bom. L. R. 293). The pltf. need not assign any reason for such an unconditional withdrawal. Order 23, Rule l (2), C. P. C. contemplates a withdrawal from the suit with liberty to bring a fresh suit. Here the pltf. must ask for leave & must make out a case within Clause (a) or (b), the Ct. has no jurisdiction to allow such withdrawal with liberty unless the suit must fail by reason of some formal defect, under Clause (a) or unless there are "other sufficient grounds" for allowing the pltf, to institute a fresh suit regarding the same subject-matter under Clause (b). See Harskamukhi v. Sarat Chandra, 32 C. W. n. 1244 : (117 I. C. 864) & Rajkumar v. Ram Khelawan Singh, A. I. R. (9) 1922 Pat. 44: (l Pat 90, F. B.). An appln. to withdraw a suit with liberty to file a fresh suit regarding the same subject-matter must be either allowed or refused in toto. If liberty is refused, the suit should not be dismissed at once but retained for trial in the usual course. See Marudachala v. Chinna Muthu, 1931 M. w. N. 1148 : (A. I. R. (19) 1932 Mad. 155). The Ct. cannot divide the petn. into two, & accept 9 the withdrawal & refuse the liberty in the same order. It is bound to give the facts & reason when giving the liberty to file a fresh suit regarding the same subject-matter. See Shamnandan v. Mulchand, 1 P. L. T. 292 ; (A. I. R. (8) 1921 Pat. 360), Sukumar v. Chairman, Dist. Board of Gaya, A. I. R. (22) 1935 Pat. 251 : (155 I. C. 210) & Reazuddin v. Mirsajid Husain, A. I. R. (31) 1944 ALL. 224 : (I. L. R. (1944) ALL. 396), Abdul v. Mohammed, A. I. R. (34) 1947 Mad. 59 :
(229 I. C. 267) & Subhashini v. Ashutosh, 39 C. L. J. 731 : (A. I. R. (11) 1924 Cal. 75l). "Other sufficient grounds" in Clause (b) has been interpreted to mean "grounds ejusdem generis to those mentioned in Clause (a)" or at least anologous to them. See Mahulla v. Hemangini Debi, 11 C. L. J. 512: (6 I. C.
629), Nagamma v. Lakshminarasu, A. I. R. (15) 1928 Mad. 1085 :
(112 I. C. 312), Sukumar v. Chairman, D. B. Gaya, A. I. R. (22) 1935 Pat. 251 ; (155 I. C. 210), & Ram Rao v. Appanna) A.I.R. (27) 1940 Bom. 121 : (I.L.R. (1940) Bom. 299 F.B.). In the present case, the petnr. the first pltf. had asked for permission to withdraw his suit, O. S. No. 95 of 1944, for possession of properties as the nearest reversioner to one Seshayya, whose widow Alivelu died on 30-11-1941, against the alleged adopted son of Seshayya, the first deft. & others. The grounds alleged by him in this I. A. No. 1374 of 1945, for withdrawal with liberty, were that his vakil, Mr. P. Chalapati Rao, had taken a portion of his (petnr.'s) properties in advance in the name of his relative the second pltf. for conducting the suit, & had then filed a genealogical table which would not support the petnr's case & had also refused to amend the plaint & the genealogical table suitably. The first deft. had attacked the 10 genealogical table as false & mythical, & had contested the petnr.'s claim to be the nearest reversioner, besides asserting the truth & validity of his own adoption. The suit was filed in 1944. This I. A was filed on 9-11-1945 after giving up his vakil & revoking his vakalat. On 9-11-1945 itself the lower Ct. passed the order as below :
"The petnr. may withdraw the suit if he wants. This is not a case for which permission can be given to withdraw the suit with liberty to being a fresh suit, Petn. is dismissed."
This is the order covered by this revision petn. The later order dismissing the suit has not been filed in this civil revision petn. So the reason for dismissing the suit cannot be definitely ascertained. Nor arc we concerned with its correctness in this civil revision petn."
12. After careful scrutiny of the ratio of the citations referred to above it is clear that petitioner did not assign any reason for an unconditional withdrawal but Order 23 Rule 1 (2) of the Civil Procedure Code contemplates withdrawal from the suit with a liberty to bring fresh suit and in that case petitioner has to pray for leave and shall make out a case in support of withdrawal with a liberty to file afresh. In such a situation Court cannot allows such withdrawal with liberty unless the lis must fail by reason of some formal defect. 11
13. In the case in hand the petition for withdrawal dated 04.10.2018 clearly spells out prayer for withdrawal on the ground of defect of jurisdiction and particularly in paragraph 15 of the application opposite party/ decree holder made a prayer for withdrawal for filing the same before appropriate forum. Therefore, absence of express liberty in the order cannot, in my opinion, affect the period of limitation while opposite party/ decree holder specifically made a prayer for withdrawal of the execution case for filing before the appropriate forum, for want of jurisdiction. Moreso, prayer for filing the execution case before the appropriate forum was not refused by the learned Judge in the order dated 29.06.2019 in connection with Title Execution No. 13 of 2002.
14. The fact dealt with in Premchand (supra) is not identical with that of ours.
15. Therefore, the order of withdrawal deemed to have been passed with liberty to file the execution case before the appropriate forum.
16. In aforesaid conspectus, I am unable to interfere with the order impugned invoking Article 227 of the Constitution of India.
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17. Accordingly, the revision application being no. C.O 230 of 2023 stands dismissed.
18. Let copy of this order be communicated to the Learned Additional District Judge, 6th Court, Alipore for information.
19. All parties to this revisional application shall act on the server copy of this order downloaded from the official website of this Court.
20. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
[BIBHAS RANJAN DE, J.]