Bombay High Court
Vaishnavi Engineers And Developers Pvt ... vs Navnath Ramkrishna Mhatre And Ors on 21 February, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:8431
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.5611 OF 2024
M/s. Vaishnavi Engineers and Developers
Private Limited (Through its Authorized
Representative Navin Singh) ...Petitioner
vs.
VISHAL Navnath Ramkrishna Mhatre and Others ...Respondents
SUBHASH
PAREKAR
Digitally signed by
Mr. A.A. Karva, for the Petitioner.
VISHAL SUBHASH
PAREKAR
Date: 2025.02.21 Mr. Hemant Gadigaonkar a/w. Mr. Devidas Bhoir and Ms. Ashwini
19:55:46 +0530
Mhatre, for the Respondents.
CORAM : N. J. JAMADAR, J.
RESERVED ON : JANUARY 30, 2025
PRONOUNCED ON : FEBRUARY 21, 2025
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the
learned counsel for the parties, heard finally at the stage of
admission.
2. The challenge in this petition is to an order dated 22 nd
February, 2024 passed by the learned Civil Judge, Kalyan whereby
an application preferred by the respondent/ original defendant to
condone the delay of 9 years 4 months and 18 days in preferring an
application to recall the order dated 20th April, 2013 permitting the
petitioner/ plaintiff to withdraw the suit being R.C.S. No. 782 of
2012, came to be allowed.
3. The background facts leading to this petition can be
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summarized as under:-
(a) The petitioner is a company incorporated under the
Companies Act, 1956. It was engaged in the business of real estate
development. On 31st May, 2008 a Development Agreement was
executed by the respondents and Janak Pandurang Mhatre and
Motiram Kachru Mhatre is favour of the petitioners, thereby
granting development rights in respect of the suit properties. The
plaintiff claimed to have parted with consideration of Rs. 47 lakhs
under the said agreement, and been put in possession of the suit
properties.
(b) Asserting that the defendants were causing obstruction to the
possession and enjoyment of the plaintiff over the suit properties
and also committed encroachment thereon, the petitioner
instituted a suit for declaration that the said agreement was
subsisting and binding on the defendants and the defendants had no
right to disturb the possession of the plaintiffs over the suit
properties, the notice dated 18th May, 2012 addressed by the
defendants professing to cancel the said agreement was unlawful
and the consequential reliefs of injunction.
(c) In the said suit, initially an order of status-quo was passed on
31st October, 2012. By an order dated 17th April, 2013 the said order
of status-quo was modified to include utilization of FSI potential
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over the land belonging to the defendants.
(d) On 20th April, 2013 the plaintiff filed a pursis to withdraw the
suit unconditinoally. By an order dated 20 th April, 2013 the learned
Civil Judge granted permission and the suit was disposed as
unconditionally withdrawn.
(e) The respondents/ defendants filed an application on 4 th
October, 2023 seeking condonation of delay in filing application to
recall the aforesaid order dated 20 th April, 2013 passed in RCS No.
782 of 2012, on the premise that the said suit was withdrawn by
the plaintiff fraudulently. Referring to the order dated 17 th April,
2013 whereby the earlier order of status quo was modified to
include utilization of FSI potential over the land belonging to the
defendants, the defendants contended that the plaintiff
surreptitiously withdrew the suit as status-quo was running against
the plaintiff. A fraud was played on the Court by seeking
withdrawal of the suit on the ground that the matter was amicably
resolved between the parties though there was no such settlement.
Neither the advocate for the defendants nor the defendants were
informed about the motion to withdraw the said suit. It was,
therefore, necessary to set aside the said order and restore the suit
so that the order of status-quo, as modified by the order dated 17 th
April 2013, continuous to operate.
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(f) As regards the delay, the defendants contended that after the
unconditional withdrawal of the said suit the plaintiff did not
submit building proposal for over 10 years and took any action to
erect construction. However, on 19th January, 2023, the plaintiff
submitted a proposal for building construction. Thus, the
defendants were constrained to approach the Court for recall of the
order permitting withdrawal of the suit. Hence, the delay, according
to the defendants, was not intentional.
(g) By the impugned order, the learned Civil Judge was
persuaded to allow the application for condonation of delay
observing that the cause ascribed for the delay was sufficient as the
plaintiff did not submit the building proposal and attempt to carry
out the construction over the suit property.
4. Being aggrieved, the plaintiff has invoked the writ
jurisdiction.
5. Mr. A.A. Karva, learned counsel for the petitioner, submitted
that the impugned order is singularly unsustainable. No cause,
much less sufficient one, was ascribed for the delay over 9 years in
preferring an application for recall of earlier order of withdrawal of
the suit. The contention that the defendants were required to
approach the Court as, on 19th January, 2023, the plaintiff
submitted an application for building permission was a subterfuge.
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What really impairs the defendants case and hinges upon the
tenability of the application is gross suppression of the facts that
the defendants had sought an interim relief in a suit instituted by
the defendants, being RCS No. 249 of 2013, with reference to the
said status-quo order and said application was rejected by the Court
on 21st May, 2013. However, without adverting to the said fact, the
defendants approached the Court seeking recall of the order
permitting withdrawal of the suit. Mr. Karva, the learned counsel,
further submitted that such an application to recall an order
permitting withdrawal of the suit by the plaintiff, was even
otherwise wholly misconceived. The impugned order, therefore,
deserves to be interfered with.
6. Mr. Gadigaonkar, learned counsel for the respondents made
an earnest endeavour to support the impugned order. It was
submitted that the trial Court has only exercised the discretion to
condone the delay. Whether the order permitting the withdrawal of
the suit is required to be recalled or not is yet to be decided. Thus,
no prejudice as such would be caused to the plaintiff. Mr.
Gadigaonkar, would urge that the withdrawal of the suit cannot be a
matter of right. If a right is vested in the defendants, the plaintiffs
cannot be permitted to withdraw the suit to the prejudice of
defendants. The Court was, therefore, enjoined to examine whether
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by permitting the withdrawal of the suit, behind the back of the
defendants, the rights vested in the defendants were likely to be
defeated.
7. To bolster up the aforesaid submission, Mr. Gadigaonkar
placed a strong reliance on the decision of the Supreme Court in the
case of K.S. Bhoopathy and Ors. vs. Kokila and Ors. 1 and another
judgment of Rajasthan High Court in the case of Mathuralal and
Ors. vs. Chiranji Lal and Ors.2.
8. Mr. Gadigaonkar also joined the issue by canvassing a
submission that the ambit of section 151 of the Code is elastic
enough to cover in its fold an application seeking recall of an order
permitting the withdrawal of the suit. To this end, reliance was
placed on a judgment of the Supreme Court in the case of Jet Ply
Wood Pvt. Ltd. vs. Madhukar Nowlakha and Ors.3.
9. The learned counsel would, therefore, urge that, in exercise of
writ jurisdiction, this Court may not interfere with an order which
permits the determination of the matter on merits, rather than
shutting out the defendants on the technical grounds of limitation.
10. Before adverting to consider as to whether the learned Civil
Judge was justified in condoning the delay of over 9 years in
seeking recall of the order of withdrawal of the suit, it may be
1 AIR 2000 Supreme Court 2132.
2 AIR 1962 Rajasthan 109.
3 AIR 2006 Supreme Court 1260.
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necessary to note the cantours of the provisions contained in rule 1
of Order XXIII of the Code. It reads as under:-
Withdrawal and Adjustment of Suits :-
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.
(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.
(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.
11. A plain reading of the aforesaid provisions, especially
comparing and contrasting the text of sub-rule (1) and (3) of rule 1
of Order XXIII, it becomes abundantly clear that the plaintiff may
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withdraw or abandon the suit under sub-rule (1) of rule 1 of Order
XXIII, at any stage. The right of the plaintiff to withdraw the suit
under sub-rule (1) of rule 1 of Order XXIII is not circumscribed by
any restrictions, save and except where the plaintiff happens to be
a minor or a person to whom the provisions contained in rule 1 to
14 of Order XXXII extend. In the later case, covered by the proviso
to sub-rule (1) of rule 1 of Order XXIII, the leave of the Court is
necessary. It, therefore, implies that if the case is not covered by the
proviso to sub-rule (1) of rule 1 of Order XXIII, the Code does not
envisage any fetters on the choice of the plaintiff not to prosecute or
abandon the suit.
12. Sub rule (3) of rule 1 of Order XXIII, on the contrary,
operates in different sphere. It addresses a situation where the
plaintiff seeks leave to withdraw the suit with liberty to file a fresh
suit. A discretion is vested in the Court to grant the plaintiff
permission to withdraw the suit with liberty to institute a fresh suit
in respect of the subject matter of the suit, where the Court is
satisfied that the suit must fail by reason of some formal defect or
there are sufficient ground for allowing the plaintiff to institute a
fresh suit.
13. The provisions contained in sub-rule (4) of rule 1 of Order
XXIII also throw light on the legislative policy of permitting the
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plaintiff to withdraw the suit unconditionally, if he so chooses. Sub-
rule (4) precludes the plaintiff from instituting any fresh suit in
respect of the subject matter of the suit where the plaintiff
abandons any suit or part of claim under sub-rule (1), or withdraws
from a suit or part of a claim without the permission referred to in
sub-rule (3). However, if the plaintiff withdraws the suit with
liberty to institute a fresh suit under sub-rule (3), the bar to the
institution of a fresh suit, envisaged by sub-rule (4) does not
operate. Thus, it becomes abundantly clear that for the simplicitor
or unconditional withdrawal of the suit, the permission of the Court
is not peremptory.
14. Reliance by Mr. Gadigaonkar on the decision in the case of
K.S. Bhoopathy (supra) does not seem to advance the cause of
submission on behalf of the defendants. The said decision, in fact,
brings to the fore the distinction between the unconditional
withdrawal of the suit under sub-rule (1) of rule 1 and the
withdrawal of the suit with liberty to institute a fresh suit under
sub-rule (3) of rule 1 of Order XXIII. The observations in the
paragraphs 10 to 12 of the said case are instructive and, hence,
extracted below:-
10] The present Rule which was introduced in place of the old Rule 1
by the Amendment Act of 1976 makes a distinction between absolute
withdrawal which is termed as 'adandonment' and withdrawal with the
permission of the Court. This clear distinction is maintained
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throughout in the substituted Rule by making appropriate changes in
the wording of various sub-rules of Rule 1.
11] The law as to withdrawal of suits as enacted in the present Rule
may be generally stated in two parts; (a) a plaintiff can abandon a suit
or abandon a part of his claim as a matter of right without the
permission of the Court, in that case he will be precluded from suing
again on the same cause of action. Neither the plaintiff can abandon a
suit or a part of the suit reserving to himself a right to bring a fresh suit,
nor can the defendant insist that the plaintiff must be compelled to
proceed with the suit; and (b) a plaintiff may, in the circumstances
mentioned in sub-rule (3), be permitted by the Court to withdraw from
a suit with liberty to sue afresh on the same cause of action. Such
liberty being granted by the Court enables me plaintiff to avoid the bar
in Order II Rule 2 and Section 11 CPC.
12] The provision in Order XXIII Rule 1 CPC is an exception to the
common law principle of non-suit. Therefore on principle an
application by a plaintiff under sub-rule (3) cannot be treated on par
with an application by him in exercise of the absolute liberty given to
him under sub-rule (1). In the former it is actually a prayer for
concession from the Court after satisfying the Court regarding
existences of the circumstances justifying the grant of such concession.
No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the
discretion of the Court but such discretion is to be exercised by the
Court with caution and circumspection. The legislative policy in the
matter of exercise of discretion is clear from the provisions of sub-rule
(3) in which two alternatives are provided; (1) where the Court is
satisfied that a suit must fail by reason of some formal defect, and the
other where the Court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate
to the Court that it must be satisfied about the sufficiency of the
grounds for allowing the plaintiff to institute a fresh suit for the same
claim or part of the claim on the same cause of action. The Court is to
discharge the duty mandated under the provision of the Code on taking
into consideration all relevant aspects of the matter including the
desirability of permitting the party to start a fresh round of litigation on
the same cause of action. This becomes all the more important in a
case where the application under Order XXIII Rule (1) is filed by the
plaintiff at the stage of appeal. Grant of leave in such a case would
result in the unsuccessful plaintiff to avoid the decree or decrees
against him and seek a fresh adjudication of the controversy on a clean
slate. It may also result in the contesting defendant losing the
advantage of adjudication of the dispute by the Court or courts below.
Grant of permission for withdrawal of a suit with leave to file afresh
suit may also result in annulment of a right vested in the defendant or
even a third party. The appellate/second appellate court should apply
its mind to the case with a view to ensure strict compliance with the
conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the
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discretionary power in permitting the suit with leave to file a fresh suit
on the same cause of action. Yet another reason in support of this view
is that withdrawal of a suit at the appellate/second appellate stage
results in wastage of public time of Courts which is of considerable
importance in the present time in view of the large accumulation of
cases in lower courts and inordinate delay in disposal of the cases.
15. The endeavour of Mr. Gadigaonkar to press into service the
observations in paragraph 12 that the discretion to grant leave
envisaged in sub-rule (3) of rule 1 is to be exercised by the Court
with caution and circumspection, does not merit countenance as, in
the instant case, such contingency did not arise. The withdrawal
was plainly under sub rule (1) of rule 1 of Order XXIII. There is no
warrant to import the considerations which govern the exercise of
discretion under sub-rule (3) to the withdrawal simplicitor under
sub rule (1) of rule 1 of Order XXIII.
16. Mr. Gadigaonkar would then urge that the said withdrawal of
the suit was actuated by a design to wriggle out of the order dated
17th April, 2013 whereby the scope of the status-quo order was
expanded. Under a couple of days of the said order 17 th March,
2013, i.e. on 20th April, 2013, the plaintiff had surreptitiously
withdrawn the suit, entailing the consequence of vacation of
modified status-quo order to the prejudice of the defendants. That
was the fraud played on the Court. Therefore, the learned Civil
Judge was justified in exercising the discretion to condone the
delay.
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17. Ordinarily the Court leans in favour of condonation of delay,
so as to advance the cause of substantive justice. The overarching
principles that the Courts are meant to decide matters on merit and
the procedure, which is a handmaid of justice, should not be
allowed to score a march over the substantive justice, weigh with
the Court in construing the cause ascribed for the delay, liberally.
The term sufficient cause thus receives liberal construction.
18. It is equally well settled that when the Court of first instance
had condoned the delay by exercising positive discretion, such
discretion is not lightly interfered with in exercise of appellate or
supervisory jurisdiction, unless the exercise of the discretion by the
Court of first instance borders on perversity and manifest
arbitrariness, and the delay has been condoned sans any cause. On
the contrary, where the Court of first instance declines to condone
the delay, the appellate or revisional Court may itself independently
examine the justifiability of cause ascribed and draw its own
conclusion. This distinction in approach was illuminating
postulated by the Supreme Court in the case of N. Balakrishnan vs.
M. Krishnamurthy4 wherein it is held that:
9] It is axiomatic that condonation of delay is a matter of discretion of the
court Section 5 of the Limitation Act does not say that such discretion can
be exercised only if the delay is within a certain limit. Length of delay is no
matter, acceptability of the explanation is the only criterion. Sometimes
delay of the shortest range may be uncondonable due to want of
4 (1998) 7 Supreme Court Cases 123.
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acceptable explanation whereas in certain other cases delay of very long
range can be condoned as the explanation thereof is satisfactory. Once the
court accepts the explanation as sufficient it is the result of positive
exercise of discretion and normally the superior court should not disturb
such finding, much less in revisional jurisdiction, unless the exercise of
discretion was on whole untenable grounds or arbitrary or perverse. But it
is a different matter when the first cut refuses to condone the delay. In
such cases, the superior cut would be free to consider the cause shown for
the delay afresh and it is open to such superior court to come to its own
finding even untrammeled by the conclusion of the lower court.
(emphasis supplied)
19. On the aforesaid touchstone, reverting to the facts of the case,
first and foremost, it is necessary to note that the only cause
ascribed in the application for condonation of delay was that the
petitioner had not submitted the building proposal and initiated
steps to carry out the construction, and the submission of building
proposal dated 19th January, 2023, necessitated filing of the
application.
20. The aforesaid cause, even if taken at par, by its intrinsic
worth, does not qualify as a sufficient cause for condonation of huge
delay of 9 years 4 months and 18 days. Undoubtedly, the length of
delay is not the sole barometer. However, such huge delay, by itself,
demands some account for not approaching the Court. No cause
can be said to have been ascribed for the delay. The submission of
building plan, at best, gave rise to a right to seek redressal. That
action may sustain the claim of accrual of right to seek redressal
but not a cause for not approaching the Court. The leanred Civil
Judge lost sight of the distinction between cause for delay and the
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necessity to seek redressal.
21. Had the matter been of delay simplicitor without intervention
of concomitant circumstances, probably different considerations
might have come into play. It is not the case that the defendants
were unaware of the withdrawal of the suit. Nor is it the case of the
defendants that they did not initiate measures to address the
situation which arose on account of the withdrawal of the suit.
22. In RCS No. 249 of 2013, which was instituted by the
defendants against the plaintiff, an application (Exh.24) was
preferred on 18th May, 2013, (under one month of the withdrawal of
the RCS No. 782 of 2012 by the plaintiff), seeking a specific prayer
to grant status-quo qua utilization of FSI of the defendant's land. In
the said application, it was, in terms, contended that on account of
unilateral and unconditional withdrawal of the suit, status-quo
order modified, by the order dated 17 th April, 2012, was required to
be continued. The said application was rejected by the Court on 21 st
May, 2013. Surprisingly, the said fact is conspicuous by its absence
in the application for condonation of delay.
23. The situation which thus emerges is that the defendants
immediately became aware of the withdrawal of the suit and even
took measures to seek injunctive relief in the suit which they had
instituted. Having failed in the said endeavour, the defendants could
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not have turned back and filed an application to seek condonation of
in seeking recall of the order permitting the withdrawal of the suit,
passed almost 9 and half years ago. Thus, by no stretch of
imagination, the cause ascribed by the defendants could have been
termed as bonafide and sufficient.
24. A useful reference in this context can be made to a decision of
the Supreme Court in the case of Esha Bhattacharjee v.
Raghunathpur Nafar Academy and ors.5. The following principles
culled out in the said case, bear upon the controversy at hand:
"21.1. (i) There should be a liberal, pragmatic, justice-oriented,
non-pedantic approach while dealing with an application for
condonation of delay, for the courts are not supposed to legalise
injustice but are obliged to remove injustice.
.....
21.5 (v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
.....
21.7 (vii) The concept of liberal approach has to encapsulate the
conception of reasonableness and it cannot be allowed a totally
unfettered free play.
.....
21.9 (ix) The conduct, behaviour and attitude of a party relating
to its inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the
courts are required to weigh the scale of balance of justice in
respect of both parties and the said principle cannot be given a
total go by in the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the courts should be
vigilant not to expose the other side unnecessarily to face such a
litigation."
25. The conspectus of aforesaid consideration is that, the
5 (2013) 12 SCC 649.
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application for condonation of delay lacked both in bonafide and
sufficiency of the cause. The learned Civil Judge was, therefore, not
justified in exercising the discretion to condone the delay. The
petition, therefore, deserves to be allowed.
Hence, the following order.
ORDER
1] The petition stands allowed.
2] The impugned order dated 22 nd February, 2024 condoning the
delay in seeking recall of the order dated 20 th April, 2013 passed in
R.C.S. No. 782 of 2012 stands quashed and set aside.
3] Civil Misc. Application No. 308 of 2023 stands rejected.
4] Rule made absolute in the aforesaid terms.
(N. J. JAMADAR, J.)
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