Calcutta High Court
Lakhinder Samaddar & Ors vs State Of West Bengal & Ors on 25 August, 2009
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
APO No. 134 of 2008
With
WP No. 2248 of 2004
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
LAKHINDER SAMADDAR & ORS.
Versus
STATE OF WEST BENGAL & ORS.
BEFORE:
The Hon'ble JUSTICE KALYAN JYOTI SENGUPTA
The Hon'ble JUSTICE MD. ABDUL GHANI
Date : 25th August, 2009.
The Court :- This matter was heard on 20.8.2009, 21.8.2009 and
it was adjourned till 25.8.2009. Learned Counsel for the State respondent is not present. It
appears that Learned Counsel for the appellant has concluded his submission and the Learned Counsel for the writ petitioner/respondent has also submitted and Learned Counsel for the State was submitting. However, today the matter despite being called on for the second time Learned Counsel for the State/respondent is not present. This matter is appearing under the heading 'For Orders' for days together; we were under the impression that he would conclude his submissions today. But he failed to turn up. Hence we decided to dispose of this matter having noted the arguments already advanced.
This appeal is against an order of the Learned Single Judge dated 4.4.2008 whereby and whereunder the applications were disposed of by and under common judgment and order. The appellant before us during pendency of the writ petition filed an 2 application being GA 144 of 2008 for impleading themselves in the writ petition, as party petitioners, thereafter an application was filed by the writ petitioners/respondent being GA 305 of 2008 for withdrawal of the same. Learned Single Judge while hearing both the applications has been pleased to allow the prayer for withdrawal and as such dismissed the application for addition of parties. Therefore, the aforesaid judgment and order is questioned by the appellants. The appellants before us have said in their application for addition of parties that they are excise licensees and are running their respective business of country spirit of and on shop having their respective outlets. They say that they are seriously affected by the Government Circular/Notification being Memo no.28-30/203- 04/2736 (21)E dated 21st November, 2003, Letter/Notice dated 20th January, 2004; Order/Letter No. Con-25/04-05/C-162(1)E dated 6th August, 2004 etc. They have also said that they have their common interest and same affectation with those of the writ petitioners by the aforesaid memos which have been challenged here in the instant writ petition. The petitioners have narrated sequence of the events which had taken place in the said writ petition. We are not concerned with all these details. In the affidavit-in-opposition filed by the State it has not been denied and disputed that the applicants are the licensees and was also affected by the same decisions and orders. The writ petition has been filed by an association and we have asked production to be given of the original writ petition, since it is not annexed. We have examined the scope and purport of the same and we find that affectation of right of the members of the said association are also same as it has been alleged in the application for addition of parties.
Mr. Saktinath Mukherjee, Learned Senior Counsel appearing for the appellant submits narrating facts which had taken place during pendency of this writ petition and even thereafter, that his client has seriously been prejudiced by the aforesaid Government circulars/notification which were challenged in the writ petition. He says that his clients in order to join the proceeding have taken action before the Hon'ble Supreme Court. The Learned Trial Judge ought not to have allowed to withdraw the writ petition affecting the petitioners' right. He submits that when it is urged that the interest of the original writ petitioners' association as well as the present applicants are same such contention ought to have been examined and prayer for addition should have been allowed and thereafter if the Court finds original writ petitioner is not willing to proceed with 3 the matter, for the sake of avoidance of multiplicity of judicial proceedings and resolving the disputes once for all the petitioners should have been transposed to the capacity of the writ petitioners. Prayer for addition normally is allowed when it is found that interest of the person or persons in the lis is the same.
Mr. Ashis Sanyal Learned Senior Advocate appearing for the writ petitioner/respondent submits that his client is a company and had duly taken action to challenge the aforesaid decision of the Government notices. There are various events which had taken place subsequently and as such his client has decided not to proceed with the writ petition. The said decision was taken by and under a valid resolution and with the authority of resolution, his client has approached this Court with a prayer for withdrawal of the writ petition. He, of course is candid to say that his clients have no objection if the prayer for addition is allowed, however, his client should not be kept in the record of the said writ petition.
Mr. Gupta appearing for the State seriously opposes to the prayer for addition of parties. He has taken a preliminary point that the impugned judgment and order consists of two parts viz. one is order of withdrawal and, another is refusal to add the person as parties. He contends that the appellants/applicants being third parties have no locus standi to challenge the said order of withdrawal in fact no leave has been obtained of this Court to prefer appeal against the aforesaid order. He then contends that when writ petitioners decided not to proceed with the matter no one should be allowed to continue with the same either by addition in the capacity of the writ petitioners or otherwise. He further contends that Learned Trial Judge has made it clear that they would be entitled to approach the Court afresh independently and for this reason the writ petition which was filed previously need not be restored on file.
We have carefully considered the submissions of the Learned Counsel for the parties and we have examined the matter in details. From the pleading it appears that there is no dispute that affectation of the right and interest of the original writ petitioners is similar and same with that of the present applicants/appellants. Had it been a case of an application for addition of parties simplicitor then by virtue of Order 1 r.10 of the Civil Procedure Code prayer should have been allowed but the complexity of the problem has arisen because of the prayer for withdrawal of the writ petition. Therefore, point for 4 consideration before us is as to whether Court should keep the writ petition pending for addition of party even when the original writ petitioners seek to withdraw the same. The Learned Trial Judge in his wisdom has decided the application for withdrawal first though the application for addition was filed earlier. Logically it is quite convenient for the Court that if the original proceeding is allowed to be withdrawn then no addition is required. According to us while hearing both the applications the Learned Trial Judge had not adopted the correct approach in this case for the application for addition which was filed earlier than the application for withdrawal ought to have been dealt with first, even applying principle of Section 10 of Civil Procedure Code hearing of the earlier application for withdrawal at least should have been stayed, and should have been heard after disposal of the application for addition. This rule, however, is not inflexible one and the Court can hear both the matters analogously and the Learned Trial Judge attempted to do so but while doing so His Lordship has given preference of hearing of the application for withdrawal and while deciding and allowing the same the application for addition of party has automatically been rendered infructuous. Had the application for addition been made later than that of for withdrawal, then perhaps the Learned Trial Judge was justified in doing so. In any view of the matter we are to examine whether order for withdrawal of the writ petition is justified or not. We are having the rules for proceeding, and hearing of the writ petition being rule 53 of the Writ Rules under which provision of Civil Procedure Code has been made applicable. Right to apply for withdrawal of the proceedings has been provided in Order 23 Rule 4 of the Civil Procedure Code which is quoted hereunder ;-
"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"
(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 of 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 persons.
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or 5
(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. On careful perusal of sub Rule (3) of Rule 1 it emerges that Court is to record its satisfaction that a suit (read petition) 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 the suit or part of the claim.
It is also evident that the right of withdrawal is not a matter of course and it is absolutely Court's discretion and this can only be exercised when the Court records its satisfaction on two eventualities viz the suit(here writ petition) must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute the fresh suit for the subject matter of the suit or part of the claim. There is no other eventuality or situation provided in the said rules for withdrawal of any action. The Legislature in its wisdom has provided the aforesaid restricted provision for withdrawal for the simple reason, in our opinion is that a party cannot go out from the Court after filing a lis, at their own whims, for once a lis is filed it has to be dealt with in appropriate manner by the Court and Court alone. The Learned Trial Judge has nowhere recorded such satisfaction and even there is no prayer that the suit is formally defective or for some other reason fresh action is to be brought. It appears from the judgment and order of the Learned Trial Judge that no leave was prayed for by the petitioner to bring a fresh action nor leave is granted either. According to us if any order is required to be passed for withdrawal the Learned Trial Judge cannot assume jurisdiction unless the application mentions either of the aforesaid two grounds. We have already noted that neither of the two grounds has been mentioned in the said application for withdrawal, we have seen so from the original petition produced before this Court in terms of the earlier order of this Court. We, therefore, are of the view that application for withdrawal has been allowed even without applying the mind and without being satisfied the aforesaid conditions being fulfilled. We find impossibility to uphold the order of withdrawal.
6Now we are to consider whether the application for addition is to be allowed or not. We have already noted on fact that interest of this applicant/appellant is same with that of the present writ petitioners and principle governing for addition of party is also mentioned in Order 1 r.10 of the Code of Civil procedure which is adopted in the writ proceeding by virtue of Rule 53 of the Writ Rules.
Sub Rule 2 of Order 1 rule 10 provides when Court can strike out or add parties. One of the conditions is that presence of person(s) before the Court is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The questions in the writ petition are whether the said orders and notices of the Government were lawful or not, and whether the appellants before us are also affected likewise the writ petitioner or not. Prima facie we find they are. For allowing the prayer for addition of party by the Court one of the tests is that if separate action were brought, any identical question of fact and law would have been raised and Court was called upon to decide the same, applying this test we find here the common question of fact and law could have arisen, had the separate writ petition been filed by the applicant/appellants herein. The Learned Trial Judge has recorded that they have their right to bring a fresh action; we are unable to subscribe this view for the approach of the Court is not to invite fresh proceeding on the same issue but to keep the same litigation pending for decision bring all person or persons who are equally affected and interested, to bring about the settlement of the issues, once for all. We, therefore, of the view that Learned Trial Judge was not assisted properly to come to above conclusion as such we express our inability to uphold this portion of order rejecting the application for addition of parties.
Mr. Sanyal, learned Counsel appearing for the writ petitioner/respondent says that his client does not want to remain as the petitioner not as parties even. In that view of the matter we add the applicants/appellants as party respondents first in the writ petition and we strike out the names of the writ petitioners, and transpose the present appellants/applicants as the writ petitioners and the power of transposition is also conferred upon the Court in a fit case under Order 1 Rule 10 of the code. As we find that this action is brought by a number of persons, and numerous persons might be opposing or supporting the Government action, we direct the present petitioners to advertise in the 7 newspaper inserting the action and the prayer made and also invite the person or persons who might be interested to come and join the proceedings either to support or to oppose. We direct the department to effect necessary amendment pursuant to the aforesaid order and this shall be done within a period of three weeks from the date of communication of this order.
All parties including department concerned are to act on a xerox signed copy of this order on the usual undertakings.
(KALYAN JYOTI SENGUPTA, J.) (MD. ABDUL GHANI, J.) GH.