Punjab-Haryana High Court
(O&M;) Jaswant Rai And Others vs Municipality, Bhatinda And Others on 10 September, 2014
RSA No.1813 of 1988 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1813 of 1988
DATE OF DECISION: SEPTEMBER 10, 2014
JASWANT RAI & OTHERS ...APPELLANTS
VERSUS
MUNICIPALITY, BATHINDA & OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL.
1. Whether the judgement should be reported in the digest? Yes
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PRESENT: MR. P.S.RANA, ADVOCATE FOR THE APPELLANTS.
MR. HARSH AGGARWAL, ADVOCATE FOR THE RESPONDENTS.
M. JEYAPAUL, J.
1. As against the judgement of reversal passed by the 1st appellate Court, the present appeal has been preferred by the tax payers which were the plaintiffs in the suit.
2. The suit was filed for permanent injunction restraining the defendants Tehsildar-cum-Assistant Collector Grade II, Bathinda and Municipality, Bathinda from collecting house tax under duress from the plaintiffs for the period from 1977-78 to 1984-85. The suit was decreed by the trial Court.
3. The defendants preferred appeal before the 1st appellate Court who accepted the appeal on the ground that the suit filed by the plaintiff yet again for the same claim made by them earlier in the previous suit which was dismissed as withdrawn simplicitor is barred by Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908 (for short 'CPC').
4. The plaintiffs filed the suit for permanent injunction restraining SUMIT GULATI 2014.09.12 16:23 I attest to the accuracy and integrity of this document RSA No.1813 of 1988 -2- the defendants from recovering the house tax for the period 1977-78 to 1984-85 on the ground that part of the house tax claimed by the defendants was barred by limitation. The plaintiffs admitted in the plaint that a suit was earlier filed for the same relief. But by inadvertence, statutory notice under Section 80 CPC was not issued and therefore, the earlier suit for similar claim was dismissed as withdrawn.
5. The defendants set up a plea that the civil Court has no jurisdiction to entertain the suit. Further, it has been contended that the present suit is not maintainable as the earlier suit was simply dismissed as withdrawn.
6. The trial Court held that learned counsel for the defendants pressed not the plea as regards the maintainability of the suit which was raised as a preliminary issue. Even otherwise, the suit was withdrawn on account of some technical defects even before the service of summons on the defendants. Therefore, withdrawal of the above suit would not disentitle the plaintiffs to file a fresh suit. Further, it has been held by the trial Court that the defendants are not entitled to recover the time barred house tax claimed beyond the period of limitation of 3 years.
7. The 1st appellate Court having held that there is a clear bar under Order XXIII Rule 1(4) CPC to file a fresh suit after withdrawal of the earlier suit without obtaining any leave to prefer a fresh suit chose to allow the appeal preferred by the defendants.
8. The only substantial question of law that arises for determination is:
1. Whether a legal issue which was given up by the counsel SUMIT GULATI 2014.09.12 16:23 I attest to the accuracy and integrity of this document RSA No.1813 of 1988 -3- during the trial proceedings can be canvassed before the appellate Court.
9. Learned counsel appearing for the appellants/plaintiffs would vehemently submit referring to para 8 of the judgement of the trial Court that learned counsel appearing for the defendants pressed not the issue as regards the maintainability of the suit at the time of arguments and therefore, such an issue cannot be raked-up before the appellate Court. It is his further submission that only for some technical defects the suit was withdrawn and therefore, the finding recorded by the trial Court on the issue of maintainability of the suit is quite sustainable.
10. Learned counsel appearing for the respondents/defendants would submit that when there is a legal bar to institute a second suit in respect of the same subject matter without obtaining any leave to file a fresh suit while withdrawing the earlier suit, such an issue can be canvassed even before the appellate Court, despite the fact that such an issue was given up by the counsel during the course of arguments before the trial Court.
11. Order XXIII Rule 1 CPC reads as follows:-
"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.SUMIT GULATI 2014.09.12 16:23 I attest to the accuracy and integrity of this document RSA No.1813 of 1988 -4-
(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) Where the plaintiff-
(a) abandons any suit or part of claim under sub-
rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. SUMIT GULATI 2014.09.12 16:23 I attest to the accuracy and integrity of this document RSA No.1813 of 1988 -5- (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]"
12. The plaintiff being the master of the suit laid by him is at liberty to abandon the suit or abandon a part of the claim. In case the plaintiff finds that he has to come up with a fresh suit in respect of the very same subject matter of the suit, he should convince the Court that some formal defect had crept-in which were turned out to be fatal to the suit. Even otherwise, the plaintiff may convince the Court that sufficient grounds exist for allowing the plaintiff to institute a fresh suit on the very same subject matter of the suit. The Court having been convinced of the aforesaid reasons assigned by the plaintiff in an application which is accompanied by an affidavit may grant permission to the plaintiff to withdraw the suit and accord liberty to institute a fresh suit in respect of the very same subject matter of the suit. Under Order XXIII Rule 1(4) of the CPC, the plaintiff is precluded from instituting any fresh suit in respect of the same subject matter, in case no such liberty to file a fresh suit was given to the plaintiff while withdrawing the earlier suit. Therefore, in my considered view, there is a legal bar to institute a second suit in respect of the very same subject matter when the earlier suit was withdrawn without obtaining any liberty to institute a fresh suit.
13. The next question that arises for consideration is whether the plea as regards the legal bar can be given up by the counsel during the SUMIT GULATI 2014.09.12 16:23 I attest to the accuracy and integrity of this document RSA No.1813 of 1988 -6- course of argument and such a stand taken by the counsel would debar the party concerned to rake-up the same during the course of appeal.
14. Learned counsel appearing for the appellant cited a decision of the Madras High Court in B.M.Mundkur vs. Life Insurance Corporation of India and others, AIR 1977 Madras 72. That was a case where an observation was found in the judgement of the trial Court to the effect that it was not disputed that deceased Srinivasa Rao had nominated the second defendant to receive the commission after his death. Such a factual aspect which was not disputed cannot be raked-up before the appellate Court, it was ruled therein.
15. In the present case, it is not the factual aspect admitted by the parties concerned or by the counsel concerned is sought to be raked-up in the appeal. The issue as to the legal bar to file a second suit was given up by the counsel for the defendants during the course of arguments.
16. The provision of Order XXIII Rule 1 CPC is based on public policy not to give an opportunity to a litigant to abuse the process of the Court. Such a legal bar is a matter concerning the Court. Even if the defendant had not raised in the written statement as to such a legal bar, the Court having come to know of the earlier suit filed and withdrawn without any liberty is competent to take up the issue suo motu and dismiss the suit. The parties to the suit have no right to give up a legal bar to institute a second suit. In the instant case, concession given by the defendants' counsel during the course of arguments does not debar the Court from taking up such a legal issue and decide it.
17. In the instant case, there is no dispute to the fact that earlier suit SUMIT GULATI 2014.09.12 16:23 I attest to the accuracy and integrity of this document RSA No.1813 of 1988 -7- which was laid by the plaintiffs in respect of the same subject matter of the suit was dismissed as withdrawn without any liberty accorded to the plaintiffs to institute a fresh suit. A legal bar under Order XXIII Rule 1(4) CPC debars the plaintiffs from instituting a fresh suit in the absence of any leave.
18. The question of law formulated by this Court is answered accordingly. Therefore, the appeal fails and it stands dismissed.
September 10, 2014 (M. JEYAPAUL)
Gulati JUDGE
SUMIT GULATI
2014.09.12 16:23
I attest to the accuracy and
integrity of this document