Madras High Court
Padmavathi Hospitality And Facilities vs The Tamil Nadu Medical Service ... on 9 September, 2020
Author: Senthilkumar Ramamoorthy
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.09.2020
CORAM :
THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.No.711 of 2020
Padmavathi Hospitality and Facilities
Management Service
rep. by its Authorized Representative
J.Anjananandan,
No.2-B, 2nd Floor J.V.L.Towers
New No.51 Old No.117
Nelson Manickam Road, Aminjikarai,
Chennai – 600 029. .... Appellant
vs
1 The Tamil Nadu Medical Service Corporation
(A Government of Tamil Nadu undertaking)
No.417 Pantheon Road Egmore
Chennai - 600 008.
2 The Director of Medical Education
Directorate of Medical Education
Kilpauk, Chennai - 10.
3 The Assistant Commissioner GST
Chennai North Commissionerate
No.2054, I Block, Newry Towers
12th Main Road, 2nd Avenue
Anna Nagar, Chennai - 600 040.
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4 Krystal Integrated Services Pvt. Ltd.
No.15, Krystal House, Dr.Mankikar Road
Sion East, Mumbai - 400 022.
5 The Assistant Commissioner (CT)
State GST, Koyambedu GST Circle
CMDA Administration Building
2nd Floor, Koyambedu
Chennai - 600 107.
6 Tamil Nadu Advance Ruling Authority
PAPJM Buildings, II Floor
No.1, Greams road
Chennai. .... Respondents
PRAYER: Appeal under Clause 15 of the Letters Patent to set aside the
order dated 28.2.2020 passed by the learned Single Judge in
W.P.No.24412 of 2019
For Appellant : Mr.Nithyaesh Natraj
For 1st respondent : Mr.Shivakumar
For 2nd respondent : Mr.Karthikeyi Balan
For respondents 3 and 5 : Mr.Mohammed Saffiq
Spl. Government Pleader
For 4th respondent : Mr.P.Vinod Kumar
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JUDGMENT
(Delivered by The Hon'ble Chief Justice)
This appeal is limited for a relief against the observations and
directions contained in paragraphs (41) and (42) of the impugned
judgment dated 28.2.2020, in a challenge raised by the appellant
in W.P.No.24412 of 2019 relating to a dispute regarding acceptance
of a bid and award of a contract pursuant to the tender notice dated
19.2.2019.
2. Another writ petition, being W.P.No.27267 of 2019, was
filed by a separate petitioner, wherein the said petitioner claimed
the bid for itself, and for rejecting the bid of the appellant herein as
well as the successful bidder, M/s.Krystal Integrated Services
Private Limited, fourth respondent herein. Both the writ petitions
were taken up together and have been dismissed. While dismissing
the writ petitions, the learned Single Judge has made the following
observations in paragraphs (40) to (42), which are reproduced
herein under:
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“40. The reasons and the law laid down by the Hon'ble
Supreme Court are binding. I hold that both the Writ
Petitioners have embarked on a speculative journey to
deliberately frustrate further progress in the tender process.
Both the Writ Petitions have to suffer an order of dismissal
and accordingly they are dismissed.
41. It must also be stated that the learned counsel for the
Writ petitioner in W.P.No.24412 of 2019, made the following
endorsement in the Writ Petition on the last day when the
writ petitions were reserved for orders:
'Petitioner may be permitted to withdraw with liberty'
This Court expresses its deep displeasure over such an
endorsement made by the learned counsel for the
petitioner. It exhibits lack of professional ethics. It is very
specifically ordered that no liberty of any kind is granted for
the Writ Petitioner in W.P.No.24412 of 2019.
42. Both the Writ Petitions are dismissed. Each of the Writ
Petitioners are directed to pay costs of Rs.5,00,000/-
(Rupees Five Lakhs only) to the Chief Justice Relief Fund,
High Court of Madras. Consequently, connected Writ
Miscellaneous Petitions are closed.”
3. We are not concerned with the observations made or the
relief prayed for by the other writ petitioner in W.P.No.27267 of
2019 and the present appeal is confined to the limited relief as
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prayed for by the appellant in the appeal arising out W.P.No.24412
of 2019 only.
4. Having entertained the appeal, we had passed the following
order on 27.7.2020, while issuing notice:
“We have heard learned counsel for the petitioner
Mr.Shivakumar, learned counsel appearing for the first
respondent; Mr.P. Vinod Kumar, learned counsel for the
fourth respondent and Mr.V.Jayaprakash Narayanan,
learned State Government Pleader for the State and its
authorities.
2. Issue Notice to the unserved respondents returnable
at an early date.
3. Learned counsel may also take private notice to the
unserved respondents and a copy of the papers be
circulated to all the learned counsels.
4. Learned counsel for the appellant has urged that this
appeal is limited in its scope questioning the correctness of
the observations, directions and imposition of cost as
contained in paragraph Nos.41 and 42 of the impugned
judgment dated 28.02.2020. Learned counsel submits that
the petitioner had instructed the counsel to withdraw the
writ petition with liberty, as an application before the
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Advance Ruling Authority was pending which was also one
of the alternative remedies available in respect of the
dispute that has been raised in the writ petition.
5. It is the contention of the learned counsel that on
06.02.2020, he was granted permission to make the
endorsement of withdrawal on the record, which was duly
made, in the hope that the writ petition filed insofar as the
present appellant is concerned, had been permitted to
withdraw with liberty to approach the Advance Ruling
Authority, but, when the impugned judgment was delivered
on 28.02.2020, the appellant's counsel was taken by
surprise with the observations made and cost imposed on
the appellant.
6. Learned counsel has clarified that the other writ
petitioner had been contesting his writ petition and there
was no endorsement by the said writ petitioner for
withdrawing the case. He also points out that this matter
had been heard at length before another learned Single
Judge, where written arguments had been filed on
04.10.2019 and inspite of the matter having been heard and
judgment reserved by the learned Single Judge, the same
was not pronounced, as a result thereof, the matter came to
be heard by another learned Single Judge, who has now
dismissed the writ petition with the said observations.
7. The contention is that there was no attempt on the part
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of the appellant to put the Court to any form of
inconvenience or seek adjournment or any unnecessary
indulgence, and he was simply pursuing his legitimate and
bona fide right to seek a judicial review from this Court in a
contractual matter to the extent it may have been
permissible.
8. In this background, once the petitioner had sought
withdrawal and had endorsed it, then, the dismissal of the
writ petition and imposition of cost without putting the
appellant's counsel to notice on this ground, is not justified,
more so, in the back ground of the litigation as indicated
above.
9. The Respondents may give their limited response on
this issue, which has been raised in this appeal.
10. Having considered the submissions raised by the
learned counsel for the respondents as well, prima facie we
find that a case for grant of interim relief has been made
out.
11. Accordingly, until further orders of this Court, we stay
the operation of paragraph Nos.41 and 42 of the impugned
judgment dated 28.02.2020.
List the matter on 07.09.2020.”
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5. The appellant had also taken a plea in his writ petition that
the appellant had made an application for advance ruling on the
applicability of Goods and Service Tax in respect of the information
required for the tender before the Advance Ruling Authority. It is in
this context that the relief for setting aside the tender proceedings
was prayed for in the writ petition.
6. Noticing the aforesaid fact, the learned Single Judge while
hearing the writ petition giving rise to this appeal, on 14.11.2019,
had passed the following order:
“Heard Mr. AR.L. Sundaresan, Learned Senior Counsel
appearing for the Petitioner, Mr. V.M. Shivakumar appearing
for the First Respondent, Mr. Vijay Narayan, Learned
Advocate General assisted by Mr. R. Venkatesh, Learned
Government Advocate appearing for the Second
Respondent, Mr. M. Santhanaraman, Learned Counsel
appearing for the Third Respondent, Mr. D. Ravichander,
Learned Counsel appearing for the Fourth Respondent and
Mr. M. Hariharan, Learned Additional Government Pleader
appearing for the Fifth Respondent and perused the
materials placed on record, apart from the pleadings of the
parties.
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2. Notice to the Sixth Respondent returnable by 22.11.2019.
Private notice is also permitted.
3. Learned Senior Counsel appearing for the Petitioner
submits that the Petitioner had made an application for
advance ruling on the applicability of Goods and Service Tax
in respect of the tender, which forms the subject of this Writ
Petition, before the Sixth Respondent, and in view of the
first proviso to Section 98(2) of the Central Goods and
Services Tax Act, 2017, seeks a clarification from this Court
for enabling the Sixth Respondent to pass orders in that
application.
4. Having regard to the facts involved in this case, and in
particular, the Counter Affidavit dated 12.11.2019 filed by
the Third Respondent, the pendency of this Writ Petition
shall not preclude the Sixth Respondent from deciding the
aforesaid application for advance ruling said to have been
made by the Petitioner.
5. Learned Counsel for the parties seek time to make
further submissions in the Writ Petition. Post the matter
along with W.P. No. 27267 of 2019 on 22.11.2019 at the
end of the list.”
7. The contention of the learned counsel for the appellant is
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that it is for this reason that the appellant made a request before
the learned Single Judge to allow the appellant to withdraw his writ
petition, for which an endorsement was made so that he may have
the liberty to pursue the appeal before the Advance Ruling
Authority.
8. The contention of the learned counsel for the appellant is
that the endorsement made for withdrawal of the writ petition was
unequivocal, as the appellant did not wish to contest the writ
petition since he was pursuing his application before the Advance
Ruling Authority, the Court ought to have simply dismissed the writ
petition and there was no justification for having imposed costs.
9. It is submitted that since the Advance Ruling Authority had
failed to decide the application in spite of the said observation made
by the learned Single Judge on 14.11.2019 during the pendency of
the writ petition, there was no option to the appellant except to
pursue his cause and make a request to that effect.
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10. In spite of the endorsement having been made, the Court
instead of passing an order of dismissing the writ petition permitting
the appellant to withdraw the same, has proceeded to express its
anguish on account of the pendency of the writ petition terming it
as a speculative journey for frustrating the tender process. Learned
counsel submits that the aforesaid observation of the learned Single
Judge in the background aforesaid, when the appellant himself has
volunteered to withdraw his writ petition, is not justified and the
Court ought not to have proceeded to decide the matter on merits,
nonetheless the appellant is only contesting the observations made
with regard to the right of withdrawal and the imposition of costs in
the present appeal.
11. Learned counsel for the parties have been heard and
Mr.Shivakumar, learned counsel for the first respondent submits
that since the appeal is limited only to these aspects and is confined
to the writ petition of the appellant, the Court may pass appropriate
orders.
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12. Mr.Karthikeyi Balan and Mr.Mohammed Saffiq, learned
counsel have been heard on behalf of the State, and Mr.P.Vinod
Kumar, learned counsel for the fourth respondent contends that it
was on account of the conduct of the appellant that the Court
proceeded to refuse withdrawal as well any liberty of any kind and
rightly imposed the cost, as a frivolous litigation was being pursued
by the appellant.
13. The aforesaid dispute has to be viewed in the light of the
principles of Order XXIII Rule 1 of the Civil Procedure Code. At the
outset, we may clarify that such principles relating to withdrawal
are applicable to writ petitions as well on the ground of public
policy, as held by the Apex Court in the case of Sarguja Transport
Service v. State Transport Appellate Tribunal, M.P., Gwalior and
others, (1987) 1 SCC 5, in paragraph (9), which is extracted herein
under:
“9. The point for consideration is whether a petitioner after
withdrawing a writ petition filed by him in the High Court
under Article 226 of the Constitution of India without the
permission to institute a fresh petition can file a fresh writ
petition in the High Court under that article. On this point
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the decision in Daryao v. State of U.P. [AIR 1961 SC 1457 :
(1962) 1 SCR 574] is of no assistance. But we are of the
view that the principle underlying Rule 1 of Order XXIII of
the Code should be extended in the interests of
administration of justice to cases of withdrawal of writ
petition also, not on the ground of res judicata but on the
ground of public policy as explained above. It would also
discourage the litigant from indulging in bench-hunting
tactics. In any event there is no justifiable reason in such a
case to permit a petitioner to invoke the extraordinary
jurisdiction of the High Court under Article 226 of the
Constitution once again. While the withdrawal of a writ
petition filed in a High Court without permission to file a
fresh writ petition may not bar other remedies like a suit or
a petition under Article 32 of the Constitution of India since
such withdrawal does not amount to res judicata, the
remedy under Article 226 of the Constitution of India should
be deemed to have been abandoned by the petitioner in
respect of the cause of action relied on in the writ petition
when he withdraws it without such permission. In the
instant case the High Court was right in holding that a fresh
writ petition was not maintainable before it in respect of the
same subject-matter since the earlier writ petition had been
withdrawn without permission to file a fresh petition. We,
however, make it clear that whatever we have stated in this
order may not be considered as being applicable to a writ
petition involving the personal liberty of an individual in
which the petitioner prays for the issue of a writ in the
nature of habeas corpus or seeks to enforce the
fundamental rignt guaranteed under Article 21 of the
Constitution since such a case stands on a different footing
altogether. We, however leave this question open.”
The aforesaid view in Sarguja Transport Service (supra) has been
reiterated in the case of Upadhyay & Co. v. State of U.P. and
others, (1999) 1 SCC 81. Another shade of the said issue has been
considered in the case of Kandapazha Nadar and others v.
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Chitraganiammal and others, (2007) 7 SCC 65. Further, the
limitation on the right of a defendant to object to a withdrawal has
been discussed in the case of Anil Kumar Singh v. Vijay Pal Singh
and others, (2018) 12 SCC 584.
14. We may further point out that it is subject to the
conditions as enunciated in the case of Radha Krishna v. State of
Rajasthan, AIR 1977 Raj 131, and subject to the powers of the
Court circumscribed to the extent as contained in Sub-Rule (4) of
Order XXIII Rule 1 of the Civil Procedure Code.
15. There are certain exceptions to this Rule which should also
be taken into consideration, namely, that the petition filed is a bona
fide attempt and not a mala fide attempt to consume the time of
the Court by way of forum shopping. While explaining the
judgment in the case of Sarguja Transport Service (supra), the
Apex Court in the case of Sarva Shramik Sanghatana (KV) v. State
of Maharashtra, (2008) 1 SCC 494, in paragraphs (12) to (18),
held as under:
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“12. We have carefully examined the decision of Sarguja
Transport Service case [(1987) 1 SCC 5 : 1987 SCC (Cri) 19
: AIR 1987 SC 88] . In the said decision it is mentioned in
para 8 as follows: (SCC p. 11)
'8. … It is common knowledge that very often after
a writ petition is heard for some time when the
petitioner or his counsel finds that the court is not
likely to pass an order admitting the petition,
request is made by the petitioner or by his counsel
to permit the petitioner to withdraw the writ
petition without seeking permission to institute a
fresh writ petition. A court which is unwilling to
admit the petition would not ordinarily grant liberty
to file a fresh petition while it may just agree to
permit the withdrawal of the petition.'
In para 9 of the said decision, it is also mentioned as
follows: (SCC p. 12)
'9. … But we are of the view that the principle
underlying Rule 1 of Order 23 of the Code should
be extended in the interests of administration of
justice to cases of withdrawal of writ petition also,
not on the ground of res judicata but on the
ground of public policy as explained above. It
would also discourage the litigant from indulging in
Bench-hunting tactics.'
(emphasis supplied)
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We are of the opinion that the decision in Sarguja Transport
case [(1987) 1 SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC
88] has to be understood in the light of the observations in
paras 8 and 9 therein, which have been quoted above. The
said decision was given on the basis of public policy that, if
while hearing the first writ petition the Bench is inclined to
dismiss it, and the learned counsel withdraws the petition so
that he could file a second writ petition before what he
regards as a more suitable or convenient Bench, then if he
withdraws it he should not be allowed to file a second writ
petition unless liberty is given to do so. In other words,
Bench-hunting should not be permitted.
13. It often happens that during the hearing of a petition
the court makes oral observations indicating that it is
inclined to dismiss the petition. At this stage the counsel
may seek withdrawal of his petition without getting a verdict
on the merits, with the intention of filing a fresh petition
before a more convenient Bench. It was this malpractice
which was sought to be discouraged by the decision in
Sarguja Transport case [(1987) 1 SCC 5 : 1987 SCC (Cri)
19 : AIR 1987 SC 88] .
14. On the subject of precedents Lord Halsbury, L.C., said in
Quinn v. Leathem [1901 AC 495 : (1900-1903) All ER Rep 1
(HL)] : (All ER p. 7 G-I)
“Before discussing Allen v. Flood [1898 AC 1 :
(1895-1899) All ER Rep 52 (HL)] and what was
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decided therein, there are two observations of a
general character which I wish to make; and one is
to repeat what I have very often said before—that
every judgment must be read as applicable to the
particular facts proved or assumed to be proved,
since the generality of the expressions which may
be found there are not intended to be expositions
of the whole law, but are governed and qualified by
the particular facts of the case in which such
expressions are to be found. The other is that a
case is only an authority for what it actually
decides. I entirely deny that it can be quoted for a
proposition that may seem to follow logically from
it. Such a mode of reasoning assumes that the law
is necessarily a logical code, whereas every lawyer
must acknowledge that the law is not always
logical at all.”
(emphasis supplied)
We entirely agree with the above observations.
15. In Ambica Quarry Works v. State of Gujarat [(1987) 1
SCC 213] (vide SCC p. 221, para 18) this Court observed:
'18. The ratio of any decision must be understood
in the background of the facts of that case. It has
been said long time ago that a case is only an
authority for what it actually decides, and not what
logically follows from it.'
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16. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd.
[(2003) 2 SCC 111] (vide SCC p. 130, para 59) this Court
observed:
'59. … It is also well settled that a little difference
in facts or additional facts may make a lot of
difference in the precedential value of a decision.'
(emphasis supplied)
17. As held in Bharat Petroleum Corpn. Ltd. v. N.R.
Vairamani [(2004) 8 SCC 579 : AIR 2004 SC 4778] a
decision cannot be relied on without disclosing the factual
situation. In the same judgment this Court also observed:
(SCC pp. 584-85, paras 9-12)
'9. Courts should not place reliance on decisions
without discussing as to how the factual situation
fits in with the fact situation of the decision on
which reliance is placed. Observations of courts are
neither to be read as Euclid's theorems nor as
provisions of a statute and that too taken out of
their context. These observations must be read in
the context in which they appear to have been
stated. Judgments of courts are not to be
construed as statutes. To interpret words, phrases
and provisions of a statute, it may become
necessary for judges to embark into lengthy
discussions but the discussion is meant to explain
and not to define. Judges interpret statutes, they
do not interpret judgments. They interpret words
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of statutes; their words are not to be interpreted
as statutes. In London Graving Dock Co. Ltd. v.
Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (AC
at p. 761), Lord MacDermott observed: (All ER p.
14 C-D)
‘The matter cannot, of course, be settled
merely by treating the ipsissima verba of
Willes, J. as though they were part of an Act
of Parliament and applying the rules of
interpretation appropriate thereto. This is not
to detract from the great weight to be given
to the language actually used by that most
distinguished Judge, …’
10. In Home Office v. Dorset Yacht Co. Ltd. [1970
AC 1004 : (1970) 2 WLR 1140 : (1970) 2 All ER
294 (HL)] Lord Reid said,
‘Lord Atkin's speech … is not to be treated as
if it were a statutory definition. It will require
qualification in new circumstances.’ (All ER p.
297g)
Megarry, J. in Shepherd Homes Ltd. v. Sandham
(No.2) [(1971) 1 WLR 1062 : (1971) 2 All ER
1267] , observed: (All ER p. 1274d)
‘One must not, of course, construe even a
reserved judgment of even Russell, L.J. as if it
were an Act of Parliament;’
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And, in British Railways Board v. Herrington [1972
AC 877 : (1972) 2 WLR 537 : (1972) 1 All ER 749
(HL)] Lord Morris said: (All ER p. 761c)
‘There is always peril in treating the words of
a speech or a judgment as though they were
words in a legislative enactment, and it is to
be remembered that judicial utterances are
made in the setting of the facts of a particular
case.’
11. Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases. Disposal of
cases by blindly placing reliance on a decision is
not proper.
12. The following words of Hidayatullah, J. in the
matter of applying precedents have become locus
classicus: (Abdul Kayoom v. CIT [AIR 1962 SC
680] , AIR p. 688, para 19)
‘19. … Each case depends on its own facts and
a close similarity between one case and
another is not enough because even a single
significant detail may alter the entire aspect,
in deciding such cases, one should avoid the
temptation to decide cases (as said by
Cardozo) by matching the colour of one case
against the colour of another. To decide
therefore, on which side of the line a case
falls, the broad resemblance to another case
is not at all decisive.’
...
‘Precedent should be followed only so far as it
marks the path of justice, but you must cut
the dead wood and trim off the side branches
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else you will find yourself lost in thickets and
branches. My plea is to keep the path to
justice clear of obstructions which could
impede it.’ ” (emphasis supplied)
18. We have referred to the aforesaid decisions and the
principles laid down therein, because often decisions are
cited for a proposition without reading the entire decision
and the reasoning contained therein. In our opinion, the
decision of this Court in Sarguja Transport case [(1987) 1
SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC 88] cannot be
treated as a Euclid's formula.
16. In the said decision, the Court held that the application for
withdrawal of the first writ petition had been made bona fide, as the
company was trying to bring about an amicable settlement. The
assumption of any forum shopping does not arise in this case, as the
pursuit of an application before the Advance Ruling Authority is a
separate remedy, which may or may not have a bearing on the claim
of the appellant in the present proceedings, but the writ petition was
filed with regard to an award of tender, the forum of which was before
the learned Single Judge. This is not a case where the appellant had
withdrawn any earlier claim with regard to the tender process to
institute a fresh proceeding. We may further point out that it appears
that the reason for approaching the Advance Ruling Authority might
have been in order to clarify the status of applicability of Goods and
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Service Tax, as the appellant appears to have quoted rates by adding
Goods and Service Tax, whereas the fourth respondent had succeeded
in offering a lesser rate without adding the component of Goods and
Service Tax. This, in our opinion, was a bona fide pursuit on behalf of
the appellant.
17. The law relating to withdrawal of a claim in the light of the
word “abandon” used in Order XXIII of the Civil Procedure Code came
to be considered by a learned Single Judge of the Allahabad High Court
in the case of Bhajan Lal and others v. Rajmala, 2013 (2) ALJ
476, where in paragraphs (23), (24), (30) and (31), the following
observations have been made:
“23. This provision was amended with the word “abandon”
appearing in the Section which was previously a little
different from the present context. To abandon means to
relinquish or give up one's claim. It is a sort of renunciation
and unless taken to be otherwise, a voluntary resignation or
disowning of a claim. It is at times in the interest of another
and it seeks to repudiate one's rights. A person casts off his
vow to continue doing something and is a formal declaration
thereof. The person abandoning a claim is voluntarily
surrendering or sacrificing his claim. It is a disclaimer or
forsaking of a right. The action taken is sought to be
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retracted from and is, therefore, an absolute unconditional
withdrawal of one's right to pursue any further claim.
24. The provision of Order XXIII is, however, hedged with
limitations on this right of absolute withdrawal even where it
is unilateral and voluntary. The Court retains the powers of
imposing costs on terms & conditions even where the
withdrawal is unconditional. The other side of the coin is
that there can be cases where such abandonment is a result
of threat, coercion, fraud and misrepresentation. In short, it
is not voluntary or unilateral and, therefore, it cannot be
said to be an absolute withdrawal. There can be a
contingency where such expression of withdrawal can be
alleged to be not in a sound state of mind or even under a
mistaken belief or wrong advice. It is in such contingencies
that the inherent power of the Court under Section 151, CPC
has to be adverted to in order to rectify any mischief or
fraud or even correction of legally permissible mistakes.
Thus, the right of a litigant may be absolute for withdrawing
from a litigation but it is hedged with the aforesaid limitation
and, therefore, can be said to be subject to any orders
passed or adjudication before the withdrawal is treated to
be absolute. The intention, therefore, expressed to withdraw
from a Suit may require me passing of an order of the Court
before finality is attached to the same.
.....
30. The contention raised that Order 21, Rule 89(2) has
similar wordings and the order of the Court is not
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necessary, is not attracted, as the ingredients of Order
XXIII are entirely different as discussed hereinabove. A
litigant can surrender his right to contest a matter which is
the essence of Order XXIII. The right to withdraw such an
intention of surrender or revoke the same which can arise in
the circumstances as discussed hereinabove is a different
issue. These ingredients, therefore, in relation to the entire
disclaimer of the claim is not comparable with the provisions
of Order 21, Rule 89(2) in a matter arising out of execution.
31. There is yet another aspect which requires consideration
namely the consequences of such withdrawal which are
unilateral and voluntary. A litigant is precluded for all times
to come from raising any similar issue or claiming any
similar right. The consequences are, therefore, so absolute
that before any opinion is expressed thereon, the legal right
to waive a claim has to be assessed. It is true that a litigant
has a right and an unqualified right to withdraw from a
litigation but it is subject to certain conditions. The right to
contest or seek a judicial remedy partakes the nature of the
basic structure of the Constitution. It is controlled by law
made by the Parliament and the right to seek a judicial
remedy, therefore, cannot be denied to a litigant. Similarly,
the remedy already sought can be abandoned which is also
permitted by law. In my opinion, before an order is passed
by a Court formally terminating the litigation, this right to
revoke a withdrawal can also be exercised and to this
extent, the power of the Court is preserved in order to do
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complete justice between the parties. The reason is that a
voluntary termination of a litigation has drastic
consequences. It is severing one's hands for all times to
come. To avoid any injustice, the right of a litigant to
change the intent should be saved to conserve any possible
lawful claim, till an order terminating the litigation is
formally passed by the Court. This would in no way
prejudice any right of the defendant, and the damage if any,
can be rectified by the Court while passing the formal order.
The procedure, therefore, would enure to the benefit of both
parties. The Court should, however, at the very outset, if
such an application is filed, proceed to decide the same so
that it does not leave the parties in a state of
indecisiveness. This would also help in terminating
unnecessary litigation.”
18. Thus, the right to withdraw a claim is available in almost an
absolute form subject to and hedged by the limitations referred to in
the said decisions. As to what is absolute withdrawal has also been
considered in a later judgment cited by the learned counsel for the
appellant in the case of Anurag Mittal v. Shaily Mishra Mittal,
(2018) 9 SCC 691, where this issue was discussed in paragraphs
(17) and (18), which are extracted herein under:
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“17. The High Court of Bombay in Anil Dinmani Shankar
Joshi v. Panvel Municipal Council, 2003 SCC OnLine Bom
24,: AIR 2003 Bom 238, followed the judgment of this Court
in Shiv Prasad v. Durga Prasad, (1975) 1 SCC 405 and held
that the said judgment is applicable to suits also. The High
Court recognised the unconditional right of the plaintiff to
withdraw his suit and held that the withdrawal would be
complete as soon as the plaintiff files his purshis of
withdrawal.
18. Order 23 Rule 1(1) CPC enables the plaintiff to abandon
his suit or abandon a part of his claim against all or any of
the defendants. Order 23 Rule 1(3) CPC requires the
satisfaction of the Court for withdrawal of the suit by the
plaintiff in case he is seeking liberty to institute a fresh suit.
While observing that the word abandonment in Order 23
Rule 1(1) CPC is “absolute withdrawal” which is different
from the withdrawal after taking permission of the court,
this Court held as follows K.S. Bhoopathy v. Kokila, (2000)
5 SCC 458] , SCC pp. 463-64, para 12:
'12. The law as to withdrawal of suits as enacted in
the present Rule may be generally stated in two
parts:
(a) a plaintiff can abandon a suit or abandon a part
of his claim as a matter of right without the
permission of the court; in that case he will be
precluded from suing again on the same cause of
action. Neither can the plaintiff abandon a suit or a
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part of the suit reserving to himself a right to bring
a fresh suit, nor can the defendant insist that the
plaintiff must be compelled to proceed with the
suit; and
(b) a plaintiff may, in the circumstances mentioned
in sub-rule (3), be permitted by the court to
withdraw from a suit with liberty to sue afresh on
the same cause of action. Such liberty being
granted by the court enables the plaintiff to avoid
the bar in Order 2 Rule 2 and Section 11 CPC.'”
19. In the present case, in our opinion, the appellant was
seeking judicial review on the principles of administrative law, and the
present proceedings in relation to an award of tender, which may have
been on erroneous grounds or otherwise, with which we are not
concerned, but the fact remains that at the intermediate stage of the
proceedings before the learned Single Judge, the order dated
14.11.2019 does take notice of the pendency of an application before
the Advance Ruling Authority and it was left open to the said authority
to decide the said application, which was not being decided by the
Advance Ruling Authority and was kept pending till the matter was
finally heard.
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20. Mr.Saffiq, learned counsel has clearly submitted that
normally in such matters when a writ petition or any other such
proceeding is pending before the High Court, the Advance Ruling
Authority awaits the disposal thereof and, therefore, the Advance
Ruling Authority had not proceeded to dispose of the matter. It is thus
clear that in spite of the observation of the Court on 14.11.2019, the
Advance Ruling Authority had kept the matter pending and this aspect
of the matter has not been taken into consideration by the learned
Single Judge while assuming that the appellant had unnecessarily
pursued the writ petition before this Court. In our opinion, there was a
justification, yet the appellant, in his wisdom, rightly instructed the
counsel to withdraw the writ petition, which endorsement was made in
open court.
21. It is the contention of the learned counsel that the Court did
not refuse permission when the endorsement was made and the
counsel was under the impression that the same would be considered
favourably in the circumstances indicated above, but the appellant was
taken by surprise when the writ petition came to be dismissed, that
too even with the imposition of Rs.5 Lakhs costs and refusing
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permission to withdraw the writ petition and liberty to pursue his
application before the Advance Ruling Authority.
22. On the said issue, we find that the learned Single Judge in
order to draw a curtain on the litigation at that stage had already been
offered an opportunity to dismiss the writ petition as withdrawn. In
our view, once such a request has been made, and unless there are
any unrepresented third party rights that may be affected, or any of
the contingencies mentioned in the judgments referred to herein above
exist, it is always ordinarily an acceptable position that the Court
should not proceed to adjudicate the matter and permit withdrawal on
such conditions that may be necessary.
23. In the instant case, we find no party unrepresented in the
litigation being affected by the appellant seeking liberty to pursue his
application before the Advance Ruling Authority. To this extent, the
fourth respondent cannot have any objection, in as much as he has no
locus to question the moving of an application by the appellant before
the Advance Ruling Authority and pursuing the same, which application
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admittedly was not disposed of due to the pendency of the writ petition
itself.
24. In such circumstances, we also do not find any valid reason
for imposing costs on the appellant. We are making these
observations only in relation to the appellant who had filed
W.P.No.24412 of 2019, which petition, in the facts narrated above,
stands on a different footing from the other writ petition, where the
petitioner does not appear to have filed any appeal questioning the
impugned judgment.
25. The appellant, therefore, had a right to withdraw the writ
petition and having exercised that right, there was no legal
impediment in granting permission to the appellant to withdraw the
writ petition. We, therefore, do not find the directions and the
observations made in paragraphs (41) and (42) of the impugned
judgment to be justified on the peculiar facts and circumstances of the
present case, as indicated above, and the same are also not supported
in law, as the withdrawal was in tune with the legal provisions that
have been enunciated in the judgments referred to above. We,
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therefore, allow the appeal only to the extent that paragraphs (41) and
(42) in so far as the present appellant is concerned would stand set
aside.
The appeal is allowed and the writ petition stands dismissed as
withdrawn, without prejudice to the right of the appellant to pursue his
application before the Advance Ruling Authority. No costs.
Consequently, C.M.P.No.9761 of 2020 is closed.
(A.P.S., CJ.) (S.K.R., J.)
09.09.2020
Index : Yes
sasi
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To:
1 The Tamil Nadu Medical Service Corporation
(A Government of Tamil Nadu undertaking)
No.417 Pantheon Road Egmore
Chennai - 600 008.
2 The Director of Medical Education
Directorate of Medical Education
Kilpauk, Chennai - 10.
3 The Assistant Commissioner GST
Chennai North Commissionerate
No.2054, I Block, Newry Towers
12th Main Road, 2nd Avenue
Anna Nagar, Chennai - 600 040.
4 The Assistant Commissioner (CT)
State GST, Koyambedu GST Circle
CMDA Administration Building
2nd Floor, Koyambedu
Chennai - 600 107.
5 Tamil Nadu Advance Ruling Authority
PAPJM Buildings, II Floor
No.1, Greams road
Chennai.
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THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY,J.
(sasi) W.A.No.711 of 2020 09.09.2020 _______ Page 33 http://www.judis.nic.in