Delhi District Court
An Application U/O Vi R 17 Cpc As Well As In ... vs Ram Shyam 1 Suit No. 404/09 on 29 March, 2010
IN THE COURT OF SH. SAMAR VISHAL, CJ-02 (North), DELHI
Suit. No. 404/09
ORDER
An application u/O VI R 17 CPC as well as in the alternative for the withdrawal of the suit with a liberty to file a fresh suit is under consideration.
Plaintiff has filed this suit for injunction alleging that there was an agreement to sell with the defendant and defendant has committed a breach of that agreement and is now trying to dispose off the property. While making an order on the application of interim stay of the plaintiff, it was observed that the suit is barred u/S 41(h) of Specific Relief Act and is not maintainable because in the facts of this case where there is a breach of agreement to sell, the appropriate remedy for the plaintiff was to file a suit for specific performance of contract and not for injunction simplicitor and instead of dismissing the suit, the Court gave one opportunity to the plaintiff to amend his plaint accordingly.
The agreement to sell the suit property was for a consideration of Rs. 31 lack. The present application of amendment is filed to amend the plaint and to seek the relief of specific performance of contract but if the application is allowed, this Court shall not have the pecuniary jurisdiction to try the present suit and therefore, int he alternative, the plaintiff has requested for allowing him to withdraw the present suit with a liberty to file a suit for specific performance of contract in the Court of competent jurisdiction.
The defendant has filed a reply to this application alleging that if the plaintiff want to withdraw the suit, it should be unconditional and no liberty should be granted to the plaintiff to file a fresh suit on the same cause of action. Vide this application, the plaintiff has prayed Pankaj Sharma Vs. Ram Shyam 1 Suit No. 404/09 two reliefs, one for amendment of plaint so that the relief of specific performance may be claimed in this suit by way of amendment and if the amendment is not allowed in the alternative for the withdrawal of this suit.
After going through the facts of this case, I am of the view that even if the plaintiff amends the present suit, it has to be transferred to some other Court for its effective disposal because this Court lacks pecuniary jurisdiction to try a suit for specific performance of contract where alleged agreement to sell was for a consideration of Rs.31 lack and therefore, I deem it expedient to allow the alternative prayer of the plaintiff i.e. to allow him to withdraw the present suit with a liberty to file a fresh suit. Such liberty can be granted u/O XXIII R 1 which provides that;
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:
(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.
Vide order dated 17.9.2009, it was already observed that the suit is not maintainable in the present form, hence, I am of the opinion that the plaintiff has sufficient reason to withdraw the present suit and file a suit for specific performance of contract in a Court of competent jurisdiction and for this reason, he deserves a liberty to file a fresh suit while allowing his Pankaj Sharma Vs. Ram Shyam 2 Suit No. 404/09 application for withdrawal of the suit. Therefore, after going through the records of the case and after hearing both the parties, the application for withdrawal of the suit is allowed and amendment is dismissed.
Announced in the open Court on (SAMAR VISHAL)
29.03.2010 CJ -02 (North)/DELHI
29.03.2010.
Pankaj Sharma Vs. Ram Shyam 3 Suit No. 404/09
29.03.2010 Suit No. 404/09
Vide separate order an application for amendment and in the alternative for the withdrawal of the suit has been allowed in respect of the relief of withdrawal. Plaintiff is allowed to withdraw the present suit. The suit is disposed off as withdrawn with a liberty to file a fresh suit on the basis of same cause of action. Application is disposed off accordingly.
File be consigned to the record room.
(Samar Vishal) CJ-02/North/Delhi.
Pankaj Sharma Vs. Ram Shyam 4 Suit No. 404/09