Sk. Abdul Taher vs Sharmila Bibi
2021 Latest Caselaw 1822 Cal

10.03.2021

srm

C.O. No. 532 of 2021

Sk. Abdul Taher Vs.

Sharmila Bibi

Mr. Partha Pratim Roy, Mr. Tanmoy Mukherjee ...for the Petitioner.

Mr. Rahul Karmakar ...for the Opposite Party.

This revisional application has been filed against an

order January 27, 2021 passed by the learned Civil Judge

(Junior Division), 1st Additional Court at Contai, District Purba

Medinipur in Judicial Misc. Case No.79 of 2019. By the order

impugned, the learned Court below allowed the prayer of the

petitioner for withdrawal of the pre-emption case under Order

23 Rule 1 of the Code of Civil Procedure but disallowed the

prayer for liberty to file a fresh suit.

The facts of the case are that the petitioner as a pre-

emptor instituted the J. Misc. Case within the period of

limitation of one year being a non-notified co-sharer. The

registration of the sale of the plot of land which was sought to

be pre-empted was completed on October 24, 2019. The pre-

emotion application was filed on November 2, 2019. The

petitioner filed an application praying for leave to deposit the

residual part of the consideration money along with 10%

interest. The said prayer of the petitioner was rejected by an

order dated October 14, 2020. On October 19, 2020, the

petitioner filed the application for withdrawal of the suit with

liberty to file afresh. By the order impugned, the said

application was partly rejected and partly allowed.

It is the contention of the petitioner that the learned

Court below could not have segregated the prayer of the

petitioner and rejected one part of the prayer and allowed

another part of the prayer.

Reliance has been placed on the decision of Kandapazha

Nadar & Ors. vs. Chitraganiammal & Ors. reported (2007) 7

SCC 65, wherein the Hon'ble Apex Court held that if the trail

Court found no reason to allow a withdrawal the application

should be rejected as a whole and the trial Court should

proceed with the main suit.

Reliance has also been placed on the decision of

Promotha Nath Pal Choudhuri vs. Saurav Dasi Chaudhurani

& Anr. reported in 1920 CWN 1011 wherein a Division Bench

of this Court held that when a plaintiff does not desire to

withdraw the suit unless liberty is granted to bring a fresh suit

and the Court is of the opinion that the liberty ought not to

have been granted, the proper course of action for the Court

would be to simply reject the application.

A similar view was taken by the Himachal Pradesh

High Court in the matter of Hans Raj Akrot vs. State of

Himachal Pradesh reported in AIR 1989 H P 43, wherein it was

held that, it was settled law 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 file a 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.

In another decision of Nathji & Anr. vs. Languria & Anr.

reported in AIR 1925 All 272, a similar view was taken by the

Allahabad High Court and the application was remanded back

to the learned trial Judge for re-adjudication on the issue.

In this case, it is urged that the application for pre-

emption was filed within the period of limitation but with

deficit consideration money.

On the basis of the decision of the Hon'ble Apex Court

in the matter of Barasat Eye Hospital & Ors. vs. Kaustabh

Mondal reported in (2019) 19 SCC 767, the petitioner made an

application in the J.Misc. Case to file the deficit consideration

money along with the interest. The said application was

rejected on October 14, 2020. The petitioner filed an application

for withdrawal on October 19, 2020 with the intention to file a

fresh suit along with full consideration money in compliance

of the decision of the Barasat Eye Hospital (supra) as the

petitioner was still within the period of limitation.

It is urged that once the petitioner realised that the

consideration money would have to be paid as a whole and

the petitioner was within time as explained in the judgment of

the Barasat Eye Hospital in paragraph 35 thereof the

application to deposit the consideration money was filed.

When the said application was rejected the petitioner thought

it wise and proper to withdraw the earlier suit with liberty to

file a fresh suit with entire consideration money along with

10% interest in compliance of the judgment of the Hon'ble

Apex Court in Barasat Eye Hospital (supra).

Without wasting any time, the petitioner filed the other

pre-emption case by depositing the entire consideration

money with the second application on October 20, 2020, that is,

after the application for withdrawal was filed. The application

for withdrawal came up for hearing before the learned Court

below on January 27, 2021, when the petitioner's prayer for

withdrawal was allowed, but the liberty was not granted.

According to the first contention of the petitioner, the

pre-emption case should have been dismissed with liberty to

file afresh. The decisions of the Hon'ble Apex Court as also

this Court support such contentions. It is settled law that the

Court should not have ventured into the decision on the merits

of the suit and then allow an application for withdrawal, but

reject the prayer for liberty to file a fresh suit. The prayers

could not be split up.

The next point urged is that the second pre-emption

case was filed within time, along with the entire consideration

money and interest and the said suit should proceed, but due

to the order impugned, the petitioner has become non-suited

as his present J.Misc. Case has been dismissed as withdrawn

but no liberty has been granted, as a result of which the second

pre-emption case is in a limbo.

It is urged by Mr. Karmakar learned Advocate for the

opposite party that in the decision of the Hon'ble Apex Court

in the matter of K.S. Bhoopathy & Ors. vs. Kokila & Ors.

reported in (2005) 5 SCC 458 it was held that leave under

Order 23 Rule 1 to file a fresh suit could not be granted at the

mere asking but the Court should apply its mind to the facts of

the case and satisfy itself that there are sufficient grounds that

such a liberty is necessary in the fact situation. According to

Mr. Karmakar, when the learned Court below while disposing

of the application had categorically come to the finding that

the suit was not maintainable in view of the decision of the

Barasat Eye Hospital (supra), the Court rightly rejected the

liberty. He further submitted that the decision was in effect a

decision on the maintainability of the suit as a preliminary

issue.

In my considered opinion, the Court had the jurisdiction

to decide whether the liberty should be granted or not, on the

facts of the case and if the Court was of the opinion that under

the facts of this case liberty to file a fresh suit could not be

granted, the proper course of action for the learned Court

below would have been to reject the application as a whole

and allow the petitioner to continue with the J. Misc. case on

its merits and thereafter pass necessary orders on the merits of

the suit. The Court could not have allowed the prayer for

withdrawal without the liberty, thereby non-suiting the

petitioner and depriving him of his right of appeal etc. as

would be available to him, had the suit been decided on

merits.

While making such observations, this Court is not going

into the question whether the subsequent pre-emption suit

filed by the petitioner is maintainable or permissible or not.

This Court only restricts this order to the decision impugned

before this Court by which the learned Court below split up

the prayers and allowed withdrawal of the suit without

liberty. This could not have been done. Either the application

should have been rejected as a whole or allowed as a whole.

Under such circumstances, the order impugned is set

aside. The matter is remanded back.

The learned Court below is directed to hear out the

application for withdrawal of the suit with liberty to file a

fresh suit on the selfsame cause of action, afresh. Such decision

will be taken within a period of two months from the date of

communication of this order. The learned court will decide

the application on its own merits.

With the aforementioned observations, this revisional

application is disposed of.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied

for, be given to the parties on priority basis.

(Shampa Sarkar, J.)