Delhi District Court
Pooja Arora vs Sumit Arora on 23 November, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 71/2022
CNR No.: DLCT01-007759-2022
Pooja Arora
W/o Sh. Sumit Arora
R/o 4/66A, 2nd Floor, Roop Nagar
New Delhi-110007
..... Appellant
VERSUS
1. Sumit Arora
S/o Sh. Sandeep Arora
2. Shashi Arora
W/o Sh. Sandeep Arora
3. Sandeep Arora
S/o Late Hari Chand Arora
All residents of:
30/29A, 2nd Floor, West Patel Nagar
Delhi-110008
..... Respondents
Date of Institution : 17.05.2022
Date of Arguments : 21.11.2022
Date of Judgment : 23.11.2022
JUDGMENT
1. The criminal appeal under Section 29 of 'The Protection of Women From Domestic Violence Act, 2005' (In short 'DV Act') is directed against order dated 04.04.2022 (In short 'the impugned order') in complaint case vide CC No. 1599/2021 titled as 'Pooja Arora vs. Sumit Arora & Ors.' whereby Ld. MM (Mahila Court) 04, Central, Tis Hazari Courts, Delhi (In short 'the trial Court') disposed off the complaint case as withdrawn.
Crl. Appl. No. 71/2022 Pooja Arora vs. Sumit Arora & Ors. Page No. 1 of 15 BRIEF FACTS:
2. The facts preceding to institution of the criminal appeal are that the appellant filed an application under Section 12 DV Act against the respondents for reliefs under Section 18, 19, 20 and 22 DV Act alongwith an application under Section 23 DV Act for interim maintenance on averments that marriage of the appellant with the respondent No. 1 was solemnized on 25.11.2001. They were blessed with a male child on 10.10.2002. In the complaint, the appellant narrated several instances of domestic violence.
3. After receipt of Domestic Incident Report (DIR), the trial Court summoned the respondents.
4. The respondent No. 1 filed reply to the said application under Section 12 DV Act and application under Section 23 DV Act and 'Income and Expenditure' affidavit.
5. On 04.04.2022, the complainant filed an application under Order 23 Rule 1 (3) read with Section 151 of 'The Code of Civil Procedure, 1908' ('CPC') seeking leave of the Court to withdraw the application under Section 12 DV Act with liberty to institute a fresh application against the respondents.
6. The trial Court recorded statement of the appellant, as under:
"ON SA I am the complainant in the present DV petition. I do not want to pursue the present case, as there are certain formal defects in my complaint and I may be permitted to withdraw the present DV petition. This is my true statement being made voluntarily."
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7. The impugned order is as under:
"Present:- Complainant alongwith Ld. Counsel Sh. Abhishek Mishra.
Respondent No. 1 alongwith Ld. Counsel Sh. A.K. Chaudhary.
It is submitted on behalf of the complainant that there are certain formal defects in the present complaint and the complainant seeks to withdraw the present case.
Separate statement of complainant to this effect has been recorded today.
In view of submissions, the present DV petition stands disposed of as withdrawn.
Since nothing survives in the present case, the present file be consigned to Record Room after due compliance."
8. Feeling aggrieved and dissatisfied with the impugned order, the appellant preferred this criminal appeal.
9. I have heard arguments of Mr. Manish Kohli, Advocate for the appellant and Ms. Divya Malhotra, Advocate for the respondent No. 1 and perused the trial Court record.
10. Ld. Counsel for the appellant contended that the trial Court committed patent error of law while disposing the application under Section 12 DV Act as withdrawn. He contended that the appellant was finding it extremely difficult to pursue her counsel. He contended that Ld. Counsel for the appellant did not file 'Income and Expenditure' affidavit of the appellant. He contended that the appellant engaged a new counsel who examined the file and found that there were several inadvertent formal defects in the said application under Section 12 DV Act.
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11. Ld. Counsel for the appellant contended that the appellant filed an application under Order 23 Rule 1 (3) read with Section 151 CPC for withdrawal of the application under Section 12 DV Act with liberty to institute a fresh application under Section 12 DV Act. He contended that the trial Court did not accede to the request made by Proxy Advocate for the appellant to passover the case and directed the appellant to make the statement. He contended that the appellant made the said statement without understanding legal intricacies. He contended that Proxy Advocate for the appellant also was not aware of legal implication of statement of the appellant wherein the words 'with liberty to file a fresh petition against the respondents' were not recorded. He contended that the trial Court neither considered the said application under Order 23 Rule 1 (3) CPC nor passed any order thereon. He contended that the trial Court should have dismissed the application under Order 23 Rule 1 (3) CPC or permitted withdrawal of the application under Section 12 DV Act with liberty to institute a fresh application under Section 12 DV Act. He contended that the application under Order 23 Rule 1 (3) read with Section 151 CPC narrated formal defects in the complaint. He contended that the impugned order is contrary to averments made in the said application under Order 23 Rule 1 (3) read with Section 151 CPC. He contended that the trial Court cannot simply dispose off the application under Section 12 DV Act as withdrawn without giving liberty, as prayed for.
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12. Ld. Counsel for the respondent No. 1 contended that the appeal is barred by limitation as it was instituted beyond limitation period stipulated for filing an appeal under Section 29 DV Act. She contended that there is delay of 43 days in institution of the criminal appeal. She contended that the appellant sent notice of the appeal to wrong address. He contended that the respondent No. 1 is not residing in his parental house. She contended that the appellant did not disclose any defect / error in application under Section 12 DV Act. She contended that the appellant is an educated lady and she voluntarily made statement before the trial Court seeking permission to withdraw the application under Section 12 DV Act without seeking leave of the Court to institute a fresh application under Section 12 DV Act. She contended that the appellant did not file her 'Income and Expenditure' affidavit despite several opportunities. She contended that there is no defect pertaining to valuation, misjoinder, description of the suit property or cause of action. She contended that such an application without disclosing any formal defect should be rejected. She contended that power under Order 23 Rule 1 (3) read with Section 151 CPC is discretionary and the trial Court rightly exercised its discretionary power. She relied on judgment in V. Rajendran and Anr. vs. Annasamy Pandian (D) Thr. Lrs. Karthyayani Natchiar, AIR 2017 SC 685 and Dr. Santhosh Vergis & Anr. vs. Shiri Villa Owners Welfare Association & Anr., OP (C) No. 508 of 2015 decided on 11.06.2015.
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13. The issue before the Court is whether the Court can dispose a complaint case as withdrawn on an application under Order 23 Rule 1 (3) read with Section 151 CPC without giving liberty to the applicant to institute a fresh application under Section 12 DV Act.
14. Relevant part of Order 23 Rule 1 CPC is as under:
"1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub- rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim."
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15. Order 23 Rule 1 (1) CPC deals with unconditional withdrawal of a suit or a part of claim made in the suit.
16. Order 23 Rule 1 (3) CPC deals with withdrawal of a suit or a part of claim made in the suit with the liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of claim where the suit is suffering from some formal defect or there are sufficient grounds to allow the plaintiff to institute a fresh suit for subject-matter of the suit or part of claim made in the suit.
17. In V. Rajendran and Anr. (supra), Hon'ble Supreme Court of India held, as under:
"9.....As per Order XXIII Rule 1(3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order XXIII Rule 1 (3) (a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order XXIII Rule 1 (3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses
(a) or (b) that is, existence of a "formal defect" or "sufficient grounds". The principle under Order XXIII Rule 1 (3) CPC is founded on public policy to prevent institution of suit again and again on the same cause of action."
18. Adverting to the facts of the case, the appellant filed an application under Section 12 DV Act against the respondents. The respondents appeared on receipt of notice of the said application. The respondent No. 1 filed his reply and 'Income and Expenditure' affidavit.
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19. At this stage, the appellant filed an application under Order 23 Rule 1 (3) read with Section 151 CPC seeking leave of the Court to withdraw the application under Section 12 DV Act with liberty to institute a fresh application under Section 12 DV Act on the ground that the application under Section 12 DV Act was suffering from inadvertent formal defects. The trial Court recorded statement of the appellant that she does not want to pursue the said case as there were certain formal defects therein and she may be permitted to withdraw the application under Section 12 DV Act and thereafter, the trial Court disposed the said application under Section 12 DV Act as withdrawn.
20. It is evident that the trial Court neither considered averments made in the application under Order 23 Rule 1 (3) read with Section 151 CPC nor passed any order thereon and simply passed the impugned order on the basis of statement made by the appellant. The trial Court exercised the jurisdiction vested in it with material illegality and manifest irregularity.
21. In case the trial Court was not satisfied that there were no formal defects or there were no sufficient grounds to permit the appellant to withdraw the application under Section 12 DV Act with liberty to institute a fresh application under Section 12 DV Act, it could have dismissed the said application and proceeded with the application under Section 12 DV Act. The trial Court did not have jurisdiction to dispose the said application as withdrawn simpliciter.
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22. In T.W. Ranganathan vs. T.K. Subramaniam and Others, AIR 1971 Madras 477, Hon'ble Madras High Court held, as under:
"4. As regards the second contention however I find that there is considerable force. When the petitioner seeks to withdraw the suit with liberty to file a fresh suit on the same cause of action, the lower court cannot direct the withdrawal of the suit without giving liberty to file a fresh suit on the same cause of action. If the court thought that the petitioner is not entitled to the liberty sought for by him, it should have dismissed the application without dismissing the suit on the basis that it has been withdrawn. As pointed out by Wanchoo, C.J. (as he then was) in Naru v. Mt. Najo, AIR 1959 Raj 53, when an application for permission to withdraw a suit with permission to institute a fresh suit is made under sub-rule (2) of Order 23, Rule 1 of Civil P.C., it is not open to the court to treat it as if it is an application under sub-rule (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit for the prayer under sub-rule (2) must be treated as one whole and the court may either reject the entire prayer and allow the suit to proceed or allow the entire prayer that is, permit the withdrawal of the suit with liberty to bring a fresh suit. The reason is obvious. If the court grants the petitioner the permission to withdraw but refuses the permission to institute a fresh suit, the result would be that the plaintiff would be deprived of carrying on with the suit as best as he can and would also not be permitted to file a fresh suit on the same cause of action and it was not intention of the Legislature that the plaintiff should be put to this loss by breaking up the prayer for withdrawal with permission to file a fresh suit about the same subject matter into two parts. This is also the view taken in Marudachala v. Chinnamuthu Nadar, AIR 1932 Mad 155 (1)."
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23. In Balbir Singh vs. Smt. Sulochana Devi, AIR 1970 Allahabad 382, the appellant filed a probate petition. He filed an application seeking leave to withdraw the said petition with liberty to bring another proceedings at the stage of final arguments on the ground that the said probate petition had some formal defects. The trial Court dismissed the said application observing that the appellant did not disclose nature of the formal defect and withheld permission to file a fresh suit. In these circumstances, Hon'ble Allahabad High Court held, as under:
"3. I have heard the learned counsel for the parties. There can be no doubt that on the facts and circumstances of the case the learned trial Judge was fully justified in refusing permission to the plaintiff to file a fresh suit or proceeding as he may be advised. It was, however, not open to the learned Judge in law to split up the plaintiff's prayer for withdrawal of the suit with permission to file a fresh suit in two parts. He could have either accepted the application or rejected it in toto. This is obvious from the fact that the plaintiff's prayer to withdraw the probate application was based on his further prayer that he should be permitted to file any other proceeding or suit as he may be advised. It was joint prayer which could have been either accepted or rejected in toto as stated above. The trial Judge, in my opinion, had no jurisdiction to split it up in two parts and to grant one and refuse the other."
24. In Bhutha vs. Baburao, AIR 1975 Karnataka 101, Hon'ble Karnataka High Court held, as under:
"5. I find considerable force in the contention of Shri Cheluvaraju. In Veeraswami v. Lakshmudu, (AIR 1951 Mad 715), it is observed as follows:
Crl. Appl. No. 71/2022 Pooja Arora vs. Sumit Arora & Ors. Page No. 10 of 15 "Where a plaintiff files a petition to withdraw the suit with permission to file a fresh suit regarding the same subject-matter, under Order 23, Rule 1 (2) the Court has got the right to dismiss the petition telling him that he might withdraw the suit if he wants but that it will not give him permission to file a fresh suit regarding the same subject-matter.
The Court cannot divide the petition into two and accept the withdrawal and refuse the liberty in the same order."
25. Therefore, when an application seeking withdrawal of a case with liberty to institute a fresh case on the same cause of action is filed, the Court can either dismiss the application and proceed with the case or permit withdrawal of the case with liberty to institute a fresh case on the same cause of action. The Court cannot split the prayer into two parts and dismiss the case as withdrawn and decline liberty to institute a fresh case on the same cause of action.
26. The trial Court committed patent error of law in disposing the application under Section 12 DV Act as withdrawn without giving liberty to the appellant to institute a fresh application under Section 12 DV Act on the same cause of action.
27. The trial Court has not taken into consideration legal implication of withdrawal of the case without giving liberty to the appellant to institute a fresh application under Section 12 DV Act. The impugned order would prevent the appellant from seeking appropriate remedy under DV Act. The trial Court passed the impugned order in most casual, mechanical and without due application of judicial mind.
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28. As regards reliance of the respondent No. 1 on the judgment in V. Rajendran and Anr. (supra) is concerned, it can be noted that in the said case, the trial Court allowed application under Order 23 Rule 1 (3) CPC seeking withdrawal of the suit with liberty to file a fresh suit. However, Hon'ble High Court set-aside the said order holding that the appellants failed to establish either "formal defects" or "sufficient grounds" for withdrawal of the suit. There was defect in the description of the suit property. Hon'ble Supreme Court of India set-aside order of Hon'ble High Court of Madras and restored the order of the trial Court. Hon'ble Supreme Court of India held that the High Court was not right in interfering with the discretion exercised by the trial Court permitting the appellants to withdraw the suit with liberty to file a fresh suit.
29. In Dr. Santhosh Vergis & Anr. vs. Shiri Villa Owners Welfare Association & Anr., (supra), an application seeking leave of the Court to withdraw the suit with liberty to file a fresh suit was dismissed by the trial Court on the ground that the petitioners did not state the formal defect and the said application was filed at advance stage. In that case, there was an error in description of width of the pathway which was the subject matter of the suit. Hon'ble High Court of Kerala held that an application under Order 23 Rule 1 (3) CPC can be filed at any stage of the suit and permitted the petitioners to withdraw the suit with liberty to file a fresh suit on the same subject matter.
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30. On careful examination of the application under Section 12 DV Act, this Court find force in contentions of Ld. Counsel for the appellant that there are general, vague and non-specific averments therein.
31. Therefore, the trial Court committed manifest error of law in simply disposing application under Section 12 DV Act as withdrawn without giving liberty to the appellant to file a fresh application under Section 12 DV Act.
32. As regards contention pertaining to delay in filing of the criminal appeal, it can be noted that the impugned order was passed on 04.04.2022. The criminal appeal was filed on 17.05.2022. After excluding time spent in obtaining certified copy of the impugned order, there is delay of 10 days in filing of the criminal appeal. Such trivial delay in preferring appeal against an patently erroneous order must be condoned otherwise it would occasion miscarriage of justice. Accordingly, delay of 10 days in filing of the criminal appeal is condoned. CONCLUSION:
33. Accordingly, the criminal appeal filed by the appellant is allowed and the impugned order dated 04.04.2022 is set-aside. Consequently, application under Order 23 Rule 1 (3) read with Section 151 CPC filed by the appellant for withdraw of application under Section 12 DV Act with liberty to file a fresh application under Section 12 DV Act is allowed.
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34. The application under Section 12 DV Act filed by the appellant is dismissed as withdrawn with liberty to the appellant to file a fresh application under Section 12 DV Act on the same cause of action.
35. A copy of judgment alongwith trial Court record be sent back to trial Court.
36. The criminal appeal file be consigned to record room. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2022.11.23 12:28:26 +0530 Announced in the open Court SANJAY SHARMA-II on this 23rd November, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Appl. No. 71/2022 Pooja Arora vs. Sumit Arora & Ors. Page No. 14 of 15 Pooja Arora vs. Sumit Arora & Ors.
CNR No.: DLCT010077592022 Crl. Appeal No. 71/2022 23.11.2022 Proceedings convened through Video Conferencing.
Present : Mr. R.M. Asif, Proxy Advocate for Mr. Manish Kohli, Advocate for the appellant.
Ms. Divya Malhotra, Advocate for the respondent No. 1.
Vide separate judgment, the criminal appeal filed by the appellant is allowed. The criminal appeal file be Digitally signed consigned to record room. by SANJAY SANJAY SHARMA SHARMA Date:
2022.11.23 12:28:39 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi 23.11.2022 Crl. Appl. No. 71/2022 Pooja Arora vs. Sumit Arora & Ors. Page No. 15 of 15