Karnataka High Court
D.P. Sharma vs Bangalore Mahanagara Palike And Others on 12 June, 2001
Equivalent citations: AIR2001KANT401, 2001(4)KARLJ132, AIR 2001 KARNATAKA 401, 2001 AIR - KANT. H. C. R. 1838, (2001) 4 KANT LJ 132, (2001) 4 ICC 329
Author: Ashok Bhan
Bench: Ashok Bhan
ORDER Chidananda Ullal, J.
1. This writ appeal is directed against the orders dated 23-8-2000 in W.P. No. 10256 of 1990 passed by the learned Single Judge, in passing whereof, the learned Single Judge in entertaining a memo seeking ieave of this Court to withdraw the writ petition with liberty to approach this Court yet again on the very same cause of action, passed an order granting permission to the appellant-writ petitioner to withdraw the petition and rejected the prayer for granting liberty as prayed for as above.
2. The appellant-writ petitioner herein is represented by the learned Counsel Sri K.S. Desai, whereas the respondents 1 to 3 are represented by the learned Counsel Sri Ashok Harnahalli and respondents 4 and 5 are represented by Sri N.K. Gupta.
3. The short point involved in the instant writ appeal is whether the learned Single Judge was justified in rejecting the prayer for granting liberty to file fresh petition on the very same cause of action, upon which the original writ petition in question came to be filed, while granting permission to withdraw the writ petition.
4. Before proceeding further, we feel it appropriate to narrate here the contents of the memo filed by the Counsel for the petitioner, and to do that, the same reads as hereunder:
"MEMO In the above matter, the petitioner respectfully submits that having regard to the subsequent events it is not necessary for the petitioner to seek further relief at the hands of this Hon'ble Court at this juncture. The petitioner seeks leave of this Hon'ble Court to withdraw the petition reserving liberty to approach this Hon'ble Court if necessary at a later stage if there is any subsequent developments and order passed.
Bangalore.
Dt. Advocate for petitioner".
5. The learned Senior Counsel Sri H.B. Datar appearing for the learned Counsel Sri K.S. Desai on record for the appellant, submitted that the learned Single Judge would not have passed the impugned order as above, for, according to him, it was not available for him to split the prayer as made out in the memo by allowing the request to withdraw the writ petition while refusing liberty to file fresh writ petition on the very same cause of action.
6. In support of his argument, the learned Senior Counsel had placed reliance on the decision of this Court in the case of Bhutha v Baburao. He had also cited yet another decision in the case of Hans Raj Akrot v State of Himachal Pradesh .
7. While taking us through the said two decisions, which we have adverted to here below, it was pointed out by the learned Senior Counsel that it was totally impermissible in law for the learned Single Judge to grant one part of the prayer while rejecting the other. Therefore, he prayed that the impugned order passed by the learned Single Judge be set aside by granting both the prayers as made out in the memo and the same be allowed in its entirety. According to him, the same go together.
8. We have carefully considered the arguments advanced in the light of the decisions cited. Before proceeding further, we feel it appropriate to quote the material part of Order 23, Rule 1 of the CPC and the same reads as 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:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 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.
(4) and (5).....".
9. Now let us advert to the above two decisions cited before us by Sri Datar.
10. In the first decision in Bhutha's case, supra, the learned Single Judge of this Court had held as hereunder:
"The Court ought either to reject as a whole an application under Order 23, Rule 1(2) of the CPC to withdraw the suit with permission to file fresh suit on the same cause of action or grant it as whole. It cannot split up the application and grant a part of it and reject the remaining".
11. In the second decision, the Acting Chief Justice of Himachal Pradesh High Court in paras 5 and 6 thereof, had held as hereunder:
"5. It is settled that where a plaintiff makes a prayer for withdrawal of the suit with liberty to file a fresh suit in respect of the subject-matter of the suit, the Court can permit the withdrawal of the suit coupled with the liberty to file a fresh suit. It cannot refuse that liberty to the plaintiff on its own. If the Court feels that, in the circumstances, brought before it, permission to withdraw the suit should not be granted, it can refuse the prayer by rejecting the application. It is not open to the Court to split up the prayer made by the plaintiff by allowing the withdrawal of the suit and refusing the liberty to institute a fresh suit in respect of the same subject-matter. (See Wazir Singh Chhela Blaka Baba Mulangah Shah v Hidayat Shah Shrida, Devidas Tulsiram Bri-
jwani v Commissioner, Poona Municipal Corporation and Radha Krishna v State of Rajasthan).
6. The impugned order of the learned sub-Judge is unsustainable for he has exercised jurisdiction which he did not possess in law. In deserves to be and is set aside".
12. We respectfully agree to what was held by this Court as well as the High Court of Himachal Pradesh in the above two decisions. We also accept the above argument advanced by Sri Datar. That we do, firstly, for Rule 1 of Order 23 makes it abundantly clear that if the Court is satisfied that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or a part thereof, it may grant permission to the plaintiff to withdraw the suit with liberty to institute a fresh suit on such terms as it thinks fit and secondly, that for the writ proceedings the provisions in CPC are made applicable under the Writ Rules.
13. In that view of the matter, we are of the considered view that the impugned order passed by the learned Single Judge is liable to be set aside and that the matter has to be remitted to him for passing appropriate order in the matter.
14. Accordingly, the impugned order dated 23-8-2000 passed by the learned Single Judge in W.P. No. 10256 of 1990 stands set aside and the matter stands remitted to him for an appropriate order in the writ petition in consonance with law.