Municipal Corporation Of Delhi vs Hira Lal And Ors.
1990 Latest Caselaw 466 Del

JUDGMENT

Arun Kumar, J.

(1) This case has been on my Daily Board since 25th October 1990. None has appeared on behalf of tile respondents so far.

(2) The point involved in the present case is purely legal. The respondents herein fifed a suit against the Municipal Corporation of Delhi (hereinafter referred as the Corporation) for perpetual injunction praying that the Corporation be restrained from Realizing house-tax by way of attachment, auction, etc. except in due process of law. The said suit was contested by the Corporation by filing a written statement. On pleadings of the parties, the Trial Court framed the following issues : (1) Whether the plaintiffs have got locus standi to file the present suit ? O.P.D. (2) If Issue No. I is proved, Whether valid notice under Section 125 of the Dmc Act was served upon the plaintiffs, if not so, its effect ? O.P.D. (3) Whether the suit is barred by Section 477 and 478 of the Dmc Act ? O.P.D. (4) Whether the suit is barred by Section 169 and 179 of the Dmc Act ? O.P.D. (5) Whether the demand made by the defendant is legal, if so, its effect ? O.P.D. (6) Relief.

(3) The said suit was finally dismissed by the Trial Chart vide judgment and decree dated 30th March 1979. The Trial Court passed a detailed order dealing with all the issues that were framed in the case. It was finally held by the Trial Court that the plaintiff was not entitled to any relief as claimed la the plaint and the suit was dismissed with costs. The plaintiffs (respondents herein) filed an appeal against the said judgment and decree of the Trial Court. The said appeal (R.C.A. 144179) came up for final hearing and disposal before Sh. S. P. Singh Chaudhary, Additional District Judge, Delhi. The learned Addl. District Judge after having observed "I have heard the parties counsel and have perused .the record", at the request of the counsel for appellants allowed the appellants in the said appeal i.e. respondents herein to withdraw the suit with permission to file a fresh suit on the same cause of action. A statement had been made before the learned Addl. District Judge by counsel for appellants in this behalf and on the basis of the statement, the learned Addl. District Judge permitted withdrawal of the suit with permission to file a fresh suit on the same cause of action. Though the learned Addl-District Judge has noted in para 4 of his impugned judgment that in the circumstances of the case, he was granting the permission, yet no such circumstances have been indicated in the order,

(4) In the present revision petition, which is directed against the order of the learned Addl. District Judge granting permission to withdraw the suit with permission to file a fresh suit on the same cause of action, it has been urged by counsel for the petitioner that when the Trial Court had dismissed the plaintiffs' suit on merits, it was not open to the learned Addl. District Judge to grant permission for withdrawal of the suit with liberty to file a fresh suit. It is urged that the plaintiff's suit has not been dismissed by the Trial Court on account of some formal defect. The Trial Court has gone into the merits of each and every issue that had been framed in the suit and therefore, the suit could not be allowed to be withdrawn at the appellate stage. It is further urged by counsel for the petitioner that granting such a permission at the appellate stage would mean that when the plaintiff finds himself being non-suited, he is allowed to reagitate the matter by initiating separate proceedings on the same cause of action which could not be the intention of law.

(5) A perusal of the impugned judgment of the Lower Court shows that it has totally failed to consider even this fact as to whether there was actually any formal defect in the plamt. The Learned Addl. District Judge has further overlooked the mala fide intentions behind such a prayer which was made before him and really it was an attempt on the part of the plaintiffs to reagitate the matter and try their luck again on the same cause of action. The learned Addl. District Judge totally overlooked the fact that the Trial Court had dismissed the suit on merits after considering the entire evidence on record. Once a decree is passed by the Trial Court certain rights accrue to the party in whose favor the suit is decided. In the present case, the dismissal of plaintiff's suit Oh merits is a decision in favor of the Corporation which holds that apart from other things, the action of the Corporation which was under challenge in the suit was in accordance with law and could not be assailed. It further followed from the said judgment that the plaintiffs were not entitled to any relief on the basis of the facts stated in the plaint. On such a finding being recorded by the Trial Court, permission to withdraw the suit with liberty to file a fresh suit will only mean that the plaintiff gets a fresh lease of life and is permitted to reagitate the same points all over again which could never be the intention of law. Grant of such a permission at the appellate stage under the circumstances is totally illegal and without jurisdiction. Of course, under Order 23 Rule 1, words "at any time" have been used. But this can only be interpreted to mean that at any time during the trial of the suit.

(6) I hold that the impugned order of the Lower Appellate Court dated 6th February 1980 allowing the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action, (thus setting aside the judgment and decree of the Trial Court, is totally illegal and without jurisdiction. The Lower Appellate Court has failed to appreciate that the effect of such an order is to set aside the well considered judgment of the Trial Court without going into any of the findings recorded therein. My attention has been drawn to . The said judgment follows two earlier decisions of the same learned Judge and . These judgments are in consonance with the view taken by me.

(7) The revision petition is accordingly accepted and the judgment dated 6th February 1980 of Sh. S. P. Singh Chaudhary, Addl. District Judge, Delhi in R.C.A. No. 144/79 is hereby set aside. The case is remanded to the Court below for decision of the Appeal in accordance with law. Since the respondents are not represented before me today, there will be no order as to costs.