Bombay High Court
F. E. Dinshaw Trust And 2 Ors vs Rizvi Builders And 3 Ors on 1 February, 2023
Author: N. J. Jamadar
Bench: N. J. Jamadar
-IAL40169-2022INS2507-2011+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 40169 OF 2022
IN
SUIT NO. 2507 OF 2011
SANTOSH
SUBHASH
KULKARNI F. E. Dinshaw Charities & ors. ...Applicants
Digitally signed by
SANTOSH SUBHASH In the matter between
KULKARNI
Date: 2023.02.04
17:34:43 +0530 Akhtar Hasan Rizvi ...Plaintiff
Versus
F. E. Dinshaw Charities & ors. ...Defendants
WITH
INTERIM APPLICATION (L) NO. 40141 OF 2022
IN
SUIT NO. 2364 OF 2011
F.E. Dinshaw Trust & ors. ...Applicants
In the matter between
Akhtar Hasan Rizvi ...Plaintiff
Versus
F.E. Dinshaw Trust & ors. ...Defendants
Mr. Pradeep Sancheti, Senior Advocate, a/w Mr. Pranav Desai,
i/b Mahesh Mishra, for the Plaintiff.
Mr. Navroz Seervai, Senior Advocate, a/w Mr. Rohan Kelkar,
Mr. Saket Mone, Mr. Shrey Shah, i/b Vidhi Partners, for
the Defendants.
CORAM: N. J. JAMADAR, J.
DATED : 1st FEBRUARY, 2023
ORDER:
1. Whether withdrawal of a suit without permission of the Court to institute a fresh suit in respect of the subject matter of such suit at the stage of lodgement precludes the plaintiff from instituting a fresh suit in respect of such subject matter, is the 1/21
-IAL40169-2022INS2507-2011+.DOC question, which the defendant poses as a preliminary objection to entertain these applications for interim/ad-interim reliefs.
2. The question arises in the backdrop of the following facts:
(a) Rizvi Builders, a proprietory concern, has instituted these suits with the averments that F. E. Dinshaw Charities, defendant No.1, is a Public Trust registered under Maharashtra Public Trust Act, 1950 ("the Act, 1950"); defendant Nos.2 to 4 are its Trustees and defendant No.5 is its General Manager.
Defendant Nos.1 to 5 executed three Agreements to Sale the fully encroached slum land admeasuring 75,200 Sq. Mtrs. in diverse survey numbers situated at Malad (E), Boriwali. As defendant Nos.1 to 5 reneged from their promise, the plaintiff was constrained to institute a suit seeking a declaration that those Agreements for Sale executed by and between the plaintiff and defendant Nos.1 to 5 are valid, subsisting and binding on the parties and also for a decree for specific performance of the contract contained in those Agreements and consequential reliefs.
(b) In the suit the plaintiff took out Notice of Motion No.3219 of 2011 seeking interim reliefs. On 7th December, 2011 a statement was made before the Court that in the event 2/21
-IAL40169-2022INS2507-2011+.DOC defendant Nos.1 to 5 either issue a tender or file an application under Section 36 of the Act, 1950 seeking permission of the Charity Commissioner for alienation of the suit property at least 15 days advance notice would be given to the Advocate for the plaintiff. Eventually by an order dated 13 th February, 2014, Notice of Motion came to be disposed of in terms of an ad- interim order which recorded the aforesaid statement made on behalf of defendant Nos.1 to 5.
(c) The plaintiff has preferred these applications asserting, inter alia, that on 1st November, 2022 the plaintiff was served with a communication by the Advocate for defendant Nos.1 to 5 that defendant Nos.1 to 5 proposed to invite offers for sale of the suit land. This intent of defendant Nos.1 to 4 is further manifested in the public notice for sale of the suit land published in the newspapers. Hence, these applications seeking to restrain defendant Nos.1 to 4 from proceeding with the proposed sale of the suit land and the appointment of the Court Receiver.
3. When these applications were taken up for hearing on ad- interim reliefs, defendant Nos.1 to 5 moved an application to amend the written statement contending that the plaintiff had deliberately suppressed a material fact that the plaintiff had 3/21
-IAL40169-2022INS2507-2011+.DOC instituted a suit being Suit (L) No.2588 of 2010 (later renumbered as Suit No.2438/2011) without the consent of Charity Commissioner, defendant No.6, under Section 51 of the Act, 1950. The said suit was withdrawn by the plaintiff on 30 th August, 2011 without liberty to institute a fresh suit in respect of its subject matter. Yet in the plaint a brazen statement was made that the plaintiff had not instituted any suit in respect of the subject matter of the instant suit. Defendant Nos.1 to 5 thus contend that the instant suit is clearly barred by the provisions contained in Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908 ("the Code").
4. The factum of the withdrawal of the earlier suit is not put in contest by the plaintiff. The plaintiff asserts that said withdrawal was of a plaint, "presented" and not a withdrawal post the "institution of the suit".
5. The facts in Suit No.2364 of 2011 are identical with the change being that of earlier Suit (L) No.2587 of 2010 (later renumbered Suit No.2436 of 2011).
6. The aforesaid objection, according to defendant Nos.1 to 5, goes to the root of the matter and precludes the Court from 4/21
-IAL40169-2022INS2507-2011+.DOC entertaining the suit itself. Hence, it is imperative to decide the same at the threshold.
7. I have heard Mr. Seervai, the learned Senior Advocate for defendant Nos.1 to 5 and Mr. Sancheti, the learned Senior Advocate for the plaintiff, at some length. The leaned Senior Counsel took the Court through the relevant pleadings and the order passed by the Prothonotary and Senior Master permitting the withdrawal of the earlier suit.
8. Before adverting to note the submissions canvassed across the bar it may be apposite to note few uncontroverted facts which are germane to the determination of the preliminary objection. Firstly, there is not much controversy over the fact that the plaintiff had filed Suit (L) No.2588 of 2010 on 31 st August, 2010. Secondly, and indubitably, the said suit was filed without the consent of the Charity Commissioner envisaged by the provisions contained in Sections 50 and 51 of the Act, 1950. Indisputably, the said suit came to be withdrawn by the plaintiff on 30th August, 2011. Thirdly, the fact that the subject matter of the said suit and that of the instant suit is one and the same, is not much in contest. It does not seem that the parties are at issue over the necessity of the consent of the learned Charity Commissioner for the institution of the suit in respect of the 5/21
-IAL40169-2022INS2507-2011+.DOC said subject matter. In fact, the plaintiff claims to have instituted the instant suit armed with the consent accorded by the Charity Commissioner - defendant No.6.
9. In the light of these uncontroverted facts, the question that comes to the fore is whether the withdrawal of Suit (L) No.2588 of 2010 was post "institution" and thus precluded the plaintiff from instituting a fresh suit in respect of the same subject matter. Mr. Seervai strenuously submitted that the question must be answered in the affirmative as the presentation of the plaint in Suit (L) No.2588 of 2010 constituted the institution of the suit. The distinction sought to be drawn between "presentation" and "institution" by the plaintiff is of no avail if considered in the light of the facts of the case and governing provisions of the Code and Bombay High Court (Original Side) Rules, 1980 ("the Rules, 1980"). Mr. Seervai would urge that the provisions contained in Section 26 of the Code make it explicitly clear that a suit shall be instituted by the presentation of the plaint. Rule 1 of Order IV again emphasises that every suit shall be instituted by presenting a plaint to the Court or such officers as it appoints. Laying emphasis on Rule 45 of the Rules, 1980, which mandate that all the plaints, other than a plaint in which leave of the Court is to 6/21
-IAL40169-2022INS2507-2011+.DOC be applied, shall be lodged with such officer as the Prothonotary and Senior Master may direct. Mr. Seervai thus urged with a degree of vehemence that the Code and the Rules recognize "presentation" as the only mode of the institution of the suit.
10. Mr. Seervai further submitted that the question is no longer res integra and covered by two binding Division Bench judgments of this Court. Reliance was placed on the judgments of this Court in the cases of Dharamsi Morarji Chemical Co. Ltd. vs. Ochhavlal Hurgovandas Shah1 and -CARIBJET INC. vs. Air India Limited2.
11. Mr. Seervai further urged that what exacerbates the situation is not only the blatant suppression of withdrawal of the earlier suit but also a brazen false statement, to the knowledge of the plaintiff, that the plaintiff had not instituted any suit or proceeding in respect of the subject matter of the suit. Such suppression entails the consequence of summary dismissal of the subsequent suit or proceeding. To lend support to this submission, a strong reliance was placed on a recent pronouncement of the Supreme Court in the case of Yashoda (Alias Sodhan) vs. Sukhwindar Singh and others3. 1 1927 Indian Law Reports 848.
2 2005(2) Mh.L.J. 461.
3 2022 Online SC 1208.
7/21
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12. Mr. Sancheti, on the other hand, submitted that mere presentation of the plaint does not amount to "institution". It is only a valid institution which constitutes, "institution" within the meaning of Order XXIII of the Code. Taking the Court through the provisions contained in Order IV, VI and VII of the Code, Mr. Sancheti endeavoured to draw home the point that the term "institution" does not connote the same meaning for the purpose of computation of period of limitation and valid commencement of the proceedings. In the former case, mere presentation may amount to institution. In the latter case, to constitute "institution", the plaint must be validly presented in conformity with the governing provisions of the Code and special enactment, wherever applicable.
13. To bolster up these submissions, Mr. Sancheti placed reliance on the judgments of the Judicial Commissioner Vindhya Pradesh in the case of Sukhnandan Prasad Hanuman Prasad vs. Baburam Maheswar Lal4, a learned Single Judge of this Court in the case of Fehmida Usman Gani Shaikh vs. Maqbool Munaf Gagan5 and recent pronouncement of the 4 1951 SCC Online VP 4.
5 2020(1) Mh.L.J. 733.
8/21
-IAL40169-2022INS2507-2011+.DOC Supreme Court in the case of Patil Automation Private Ltd. and others vs. Rakheja Engineers Private Limited6.
14. Mr. Sancheti joined issue on the alleged suppression by canvassing a submission that suppression of every fact does not entail the adverse consequences. Only when the suppressed fact is of material significance from the point of view of affecting the merits of the case, the suppression becomes critical. Reliance was sought to be placed on a judgment of the Supreme Court in the case of SJS Business Enterprises (P) Ltd., vs. State of Bihar and others7.
15. Lastly, Mr. Sancheti would urge that the justice of the claim cannot be lost sight of. Having received the entire consideration defendant Nos.1 to 5 resiled from their promise and thus the plaintiff was constrained to institute the suit. The Court ought not to shut the doors on a litigant, who had been diligently pursuing the proceedings, especially when there is no material to show that there was a clear animus to abandon the suit.
16. I have given anxious consideration to the rival submissions.
6 (2022) 10 SCC 7 (2004) 7 Supreme Court Cases 166.
9/21
-IAL40169-2022INS2507-2011+.DOC
17. To begin with, it may be appropriate to extract the order passed by the Registrar/Prothonotary (Original Side) on 30 th August, 2011, permitting the withdrawal of Suit (L) No.2588 of 2010. It reads as under:
"On the appln. of Mr. Parag Sharma, Suit at lodging number 2588 of 2010 is allowed to be withdrawn. 2/3 rd refund. Office to act on minutes."
18. Since the import of the aforesaid order hinges upon the question as to whether as of that date Suit (L) No.2588 of 2010 stood, "instituted", it may be necessary to note the governing provisions of the Code and the Rules, 1980.
19. Section 26 of the Code reads as under:
"Section 26. Institution of suits.
[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
2] ....."
20. Order IV Rule (1) and (2) reads as under:
"Order IV Institution of Suits.-
1. Suit to be commenced by plaint.- (1) Every suit shall be instituted by presenting a 1[plaint in duplicate to the Court] or such officer as it appoints in this behalf. (2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
[(3) The plaint shall not be deemed to by duly instituted unless it complies with the requirements specified in sub- rules (1) and (2).]
2. Register of suits.- The Court shall cause the particulars of every suit to be entered in a book to be kept for the purposes 10/21
-IAL40169-2022INS2507-2011+.DOC and called the resister of civil suits. Such entries shall be numbered in every year according to the Order in which the plaints are admitted."
21. Rule 45 of the Rules 1980 reads as under:
"45. Plaint to be lodged before presentation.- A plaint in which leave of the Court is to be applied for shall, except in cases of special urgency, be lodged for examination with the officer attending on the Judge in Chambers before 4.15 p.m. on the day previous to its being presented to the Judge and the plaintiff or his Advocate on record shall attend before the Judge at the time of presentation.
All other plaints shall be lodged with such officer as the Prothonotary and Senior Master may direct."
22. A conjoint reading of the aforesaid provisions makes it explicitly clear that institution of the suit shall be by the presentation of the plaint. Sub-Rule (2) of Rule 1 of Order IV mandates that every plaint shall comply with the Rules contained in Order VI and VII wherever applicable. Sub-rule (3) of Rule 1 further emphasises the necessity of compliance by a negative declaration that no plaint shall be deemed to be duly instituted unless it complies with the requirements specified in Sub-rule (1) and (2). Rule 2 of Order 4 envisages a Register of Civil Suits containing entries of the plaint which are admitted. This implies that only those suits which are duly instituted merit registration in the register of suits. 11/21
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23. The aforesaid provisions, if construed in a correct perspective, show that the "admission" of a plaint is a stage posterior to the "presentation" of the plaint. It appears these two stages are separated by scrutiny, albeit at ministerial level, to ascertain as to whether the plaint conforms to the requirements envisaged by the Code and procedural Rules, to merit admission. "Presentation" does not amount to, or is not equivalent of, "institution" in all circumstances and for all purposes.
24. Keeping in view this subtle yet significant distinction, the submissions canvassed and the judgments relied upon by the learned Senior Advocates deserve to be considered. In the case of Dharamsi Morarji (supra), on which a strong reliance was placed by Mr. Seervai, the Division Bench was confronted with a question as to whether the plaintiff was entitled to the benefit of Section 4 of the Indian Limitation Act, 1908 on the ground that the plaintiff could not have filed the suit during annual summer vacation. In that context, the Division Bench noted the provisions contained in Section 3 of the Limitation Act which read as under:
"3. Bar of limitation.
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and 12/21
-IAL40169-2022INS2507-2011+.DOC application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act,--
(a) a suit is instituted,--
(i) in an ordinary case, when the plaint is presented to the proper officer;
............."
25. In the context of the aforesaid provisions, Mr. Crump J. enunciated the position as under:
"A paint has to be presented in this Court by being lodged in the office of the Prothonotary. I may say that I regard the word "present" in section 3 of the Indian Limitation Act as indicating a purely mechanical process. When a plaint is taken to the Prothonotary's office and is given to the officer whose duty it is to receive it, it has been presented."
26. In a concurring judgment Mr. Blackwell J. observed as under:
"The rule dealing with the lodging of plaints is Rule 19 which provides that they should be lodged with the Judge's Clerk at the time specified in that rule. In my opinion the moment a plaint is lodged it is presented to the Court within the meaning of Section 3 of the Indian Limitation Act which defines what is meant by the institution of a suit; and in my judgment nothing more is required of a person who desires to institute a suit except to lodge a plaint as required by Rule
19."
27. The import of the aforesaid pronouncement, in my considered view, cannot be construed de hors the context in which those observations were made. The connotation of the term, "instituted" was primarily considered from the point of 13/21
-IAL40169-2022INS2507-2011+.DOC view of the bar of limitation. The term "institution", when considered from the point of view of bar of limitation must receive a liberal consideration. If institution of a suit or proceedings is construed strictly in the sense that it must be a valid and complete institution, it may lead to anomalous consequences. Sub-section (2) of Section 3 thus provides that a suit is instituted, in an ordinary case, when the plaint is presented to the proper officer. If it is held that on the day the plaint is presented to a proper officer, it must comply with all the requirements so as to constitute a valid presentation, lest the suit cannot be said to have been instituted, there is a real danger of the plaintiff being deprived of the remedy. It will also bring in an element of inquiry as to whether there was a valid presentation on the day on which the plaint was tendered. I therefore find substance in the submission of Mr. Sancheti that institution for the purpose of limitation stands on a different footing.
28. The judgment of the Division Bench, in the case of CARIBJET INC. (supra) deals with the question as to whether lodging of the plaint without obtaining prior leave under Clause 12 of the Letters Patent is impermissible. The Division Bench held that the fact that the suit was accepted by the authorized 14/21
-IAL40169-2022INS2507-2011+.DOC officer of the High Court prior to obtaining leave under Clause 12 will make no difference as it is only upon numbering of the suit, the suit can be said to have been accepted by the Court and therefore it was not possible to accept the submission that the lodging of the plaint without obtaining such leave was improper presentation.
29. The aforesaid pronouncement does not advance the cause of the submission on behalf of defendant Nos.1 to 5. In fact the practice, which the Division Bench held to be correct one, set out in paragraph 11 of the judgment, lends support to the submission on behalf of the plaintiff that only after the removal of the defects, a plaint can be said to have been validly presented so as to enter it in the register of the suits.
30. Paragraph 11 reads as under:
"11. In our opinion, the legal position has been correctly set out by P. B. Sawant, J. (as he then was) in Union Bank of India v. Sunpack Corporation and Ors., 1986 Mh.L.J. 237 as follows : As per the existing practice the plaint is presented to the Prothonotary and Sr. Master of this Court who is the officer appointed for the acceptance of the plaint as per Order IX, Rule 1 of the Code of Civil Procedure. Then follows the next stage mentioned in Rule 2 of the said Order, namely, the entry of the particulars of the suit in the register of suits and their seriatim numbering according to the order in which the plaints are admitted. Order V, Rule 1 then states that it is only when the suit has been duly admitted that the summons is to be issued to the defendant or defendants as the case may be. This is also clear from the provisions of Order VII, Rule 9. The Code itself, therefore, envisages two stages - first, of the presentation of the plaint, and the next, of the admission of the plaint. The suit is not 15/21
-IAL40169-2022INS2507-2011+.DOC admitted to the register of suits and number is given to it, merely on the presentation of the plaint. After the presentation, the plaint is scrutinized. If there are any defects in the same, the plaintiff is required to remove them. The removal of defects is a matter of procedure. It is only after the defects are removed that it becomes eligible for an entry and a number, in the register of suits. One of the defects can be the absence of leave of the Court to institute the suit where it is necessary, including leave under Clause 12 of the Letters Patent. So long, therefore, as the plaint is not admitted and entered in the register of suits, all defects including that of the absence of leave under the said clause, can be removed without returning the plaint. It was pointed out that it is the confusion between the two stages, namely presentation of the plaint and of its admission to the register of suits after the removal of the defects, if any, which is responsible for the faulty procedure adopted by the office. Sawant J. directed the office not to return the plaint for want of leave under Clause 12 of the Letters Patent but only require the plaintiff to obtain the leave and admit it to the register when leave is obtained. The office followed and implemented the directions of Sawant J. However, it appears that after the decision of Suresh J. in Rhoda Mehta's case (supra) which has taken a contrary view, the office again changed the practice. Incidentally, neither in Rhoda Mehta's case nor in the other decisions rendered by the learned single Judge the decision of Divisional Bench in Ramgopal Chunilal's case was noted. Those decisions are clearly per incuriam. We are informed that following an unreported decision of Kochar J. dated 11th March, 1977 in Nat Steel Equipment Pvt. Ltd. v. Bangalore Heart Hospital and Research Centre (Summary Suit (Ld) No. 213 of 1999) the old practice of not returning the plaint for want of leave has been restored by the office. In the circumstances, the fact that the suit was accepted by the authorised officer of this Court prior to obtaining leave under Clause 12 will make no difference inasmuch as it is only upon numbering of the suit the suit can be said to have been "accepted" by this Court. It is, therefore, not possible to accept the submission that the plaint as lodged on 20th July, 2001 was improper presentation. In the present case, admittedly, leave under Clause 12 was granted on 8th September, 2001 and only thereafter the suit came to be numbered on 13th September, 2001. There is thus no reason to interfere with the order granting leave under Clause 12. Appeal is accordingly dismissed."
(emphasis supplied) 16/21
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31. The judgment of the Division Bench of the Madras High Court in the case of Olympic Cards Limited vs. Standard Chartered Bank8, the observations in which were quoted by the Supreme Court in paragraph 97 of the judgment in the case of Patil Automation (supra), brings out the distinction between the "presentation of a plaint" and "institution of a suit", more poignantly. Mr. Seervai was justified in canvassing a submission that the judgment in the case of Patil Automation (supra) did not deal with the said distinction as the Supreme Court considered the mandatory or directory nature of pre- institution mediation envisaged by Section 12A of the Commercial Courts Act, 2015 is impeccable. Yet, in my view, reference to the judgment of the Division Bench of the Madras High Court in the case of Olympic Cards (supra) becomes relevant as, in the said case, the Madras High Court considered the distinction between "presentation" and "institution" in the context of the bar to institution under Order XXIII Rule 1(4) of the Code, like the case at hand.
32. In Olympic Cards (supra) the Madras High Court was confronted with a question as to whether non-pursuance of an application filed under Order IX Rule 7 of the Code, which was 82012 SCC Online Mad 5133.
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-IAL40169-2022INS2507-2011+.DOC returned and not re-presented, would amount to withdrawal - abandonment of the claim under Order XXIII Rule 1 of the Code and preclude the defendants from filing a fresh application.
33. After adverting to the provisions contained in Order IV Rule 1 and Order XXIII Rule 1(4) of the Code, the Madras High Court observed, inter alia, as under:
"16. Rule (1) of Order IV of C.P.C. provided for institution of suits. Rules 3 and 4 of Order IV contains the statutory prescription that the plaint must comply with the essential requirements of a valid plaint and then only the process of filing would culminate in the registration of a suit. Rule 21 of Civil Rules of Practice contains the basic difference between presentation and institution. There is no dispute that the date of filing the plaint would be counted for the purpose of limitation. However, that does not mean that the suit was validly instituted by filing the plaint. The plaint, which does not comply with the rules contained in Order VI and VII, is not a valid plaint. The Court will initially give a Diary Number indicating the presentation of suit. In case the plaint is returned, it would remain as a "returned plaint" and not a "returned "suit". The act of numbering the plaint and inclusion in the Register of Suits alone would constitute the institution of suit. The stages prior to the registration of suit are all preliminary in nature. The return of plaint before registration is for the purpose of complying with certain defects pointed out by the Court. The further procedure after admitting of the plaint is indicated in Rule 9 of Order VII. This provision shows that the Court would issue summons to the parties after admitting the plaint and registering the suit. Thereafter only the defendants are coming on record, exception being their appearance by lodging caveat. Even after admitting the plaint, the Court can return the plaint on the ground of jurisdiction under Rule 10 of Order VII of C.P.C. The fact that the plaintiff/petitioner served the defendant/respondent the copies of plaint/petitions before filing the suit/petition would not amount to institution of suit/filing petition. It is only when the Court admits the plaint, register it and enter it in the suit register, it can be said that the suit is validly instituted.18/21
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17. It is, therefore, clear that any abandonment before the registration of suit would not constitute withdrawal or abandonment of suit within the meaning of Order XXIII Rule 1, C.P.C., so as to operate as a legal bar for a subsequent suit of the very same nature. It is only the withdrawal or abandonment during the currency of a legal proceedings would preclude the plaintiff to file a fresh suit at a later point of time on the basis of the very same cause of action.
(emphasis supplied)
34. Observing thus, the Madras High Court held that the return of the application under Order IX Rule 7 and failure to re-present it would not amount to withdrawal of a validly instituted proceedings and, therefore, the bar under Order XXIII Rule 1(4) would not operate. The Madras High Court also drew support to its conclusion by adverting to the principle that rules of procedure are handmaids of justice and any interpretation which eludes substantive justice is not to be adopted.
35. The aforesaid enunciation of law would thus indicate that the distinction between "presentation" and "institution" is a real one. If overlooked, it has the propensity to cause prejudice.
36. The matter can be looked at from a slightly different perspective. The earlier Suit (L) No.2588 of 2010 was withdrawn when it was "called for rejection". In the context of indisputable position that when the said suit was withdrawn the plaintiff had not obtained the consent of the Charity Commissioner under Section 51 of the Trust Act, 1950, it can be assumed the 19/21
-IAL40169-2022INS2507-2011+.DOC plaint, at that stage, was not validly instituted and could have been rejected. Two considerations become relevant. One, the consequence of rejection of the plaint. Two, whether the withdrawal of the suit in the face of non-compliance of a peremptory requirement reflects an animus to completely abandon the claim.
37. The first situation does not present any difficulty. The provisions of Order VII Rule 13 make it abundantly clear that the rejection of the plaint on any of the grounds mentioned under Order VII Rule 11 shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. If the Code does not preclude a party from presenting a fresh plaint in respect of the same subject matter, even where an earlier plaint has been rejected under Order VII Rule 11, a fortiori withdrawal of a suit at the stage of lodgment, when the suit was called for rejection, should not operate as a bar.
38. The second aspect, in the very nature of the things, is rooted in facts and circumstances of the case. Where the presentation of the plaint does not constitute a valid presentation to merit the admission of the plaint in the register of suits, withdrawal of such a proceedings may not necessarily 20/21
-IAL40169-2022INS2507-2011+.DOC lead to a clear animus to abandon the claim. In the absence of material to show that the withdrawal was actuated by a clear animus to abandon the claim, in my view, a party cannot be deprived of the right to seek remedy when the first plaint was not properly constituted.
39. In the aforesaid view of the matter, I am persuaded to hold that the withdrawal of the Suit (L) No.2588 of 2010 when it was called for rejection for an apparent defect of want of consent of the Charity Commissioner, would not constitute withdrawal of a properly "instituted" suit.
40. The suppression of the factum of presentation and withdrawal of the said suit, whilst instituting the instant suit, and the consequences the said suppression entails, are the matters which are not amenable to determination at this stage. I am, therefore, of the view that it would be appropriate to keep the said issues open for determination at an appropriate stage.
41. With the aforesaid clarification, the preliminary objection stands rejected.
[N. J. JAMADAR, J.] 21/21