Delhi High Court
Sh.Shiv Kumar Sharma & Anr. vs Dr. J.P.Mehta on 3 September, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRP No.129/2013
% 03rd September, 2014
SH.SHIV KUMAR SHARMA & ANR. ......Petitioners
Through: Mr.S.C.Dhawan, Advocate.
VERSUS
DR. J.P.MEHTA ...... Respondent
Through: Mr.Sanjeev Mehta, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Challenge by means of this petition under Section 115 of Code of
Civil Procedure, 1908 (CPC) is to the impugned order of the trial court dated
25.4.2013. By the order dated 25.4.2013, after the suit was withdrawn on
25.1.2012, an application subsequently filed under Section 151 CPC was
allowed and the order dated 25.1.2012 was modified, that the withdrawal of
the suit is not simplicitor but is by granting liberty to file a fresh suit.
2. The first suit was a suit for mandatory and permanent injunction and
with respect to which objections were raised with regard to appropriate court
fees because actually the relief which was claimed was a relief of possession
in the garb of mandatory injunction. Therefore, the first suit, in view of the
averments in the written statement, was withdrawn on 25.1.2012. However,
on 25.1.2012 no permission was taken to file a fresh suit, and therefore the
subject application under Section 151 CPC was filed for modifying the order
dated 25.1.2012 that the suit be treated as withdrawn with liberty to file a
fresh suit.
3. The trial court while allowing the application has given the following
observation in para 6 of the impugned order dated 25.4.2013 and which
reads as under:-
" 6. It is true that the present situation is not covered by any of the
provisions laid down in the Code of Civil Procedure. However, the Court is
of the opinion that under Section 151 CPC, the Court is empowered with the
inherent powers to do substantive justice. It is a matter of record that the
defendant had raised objections with regard to the appropriate court fees. It
is also a matter of record that the defendant had taken preliminary objection
in the WS that no court fees had been paid on the relief of possession which
had been sought by the plaintiff in the garb of mandatory injunction. It is
also not disputed that subsequently the plaintiff had filed another suit in the
Court of Ld.ADJ seeking all the proper reliefs. In such a scenario, the grant
of permission to file the fresh suit while earlier one was withdrawn
simplicitor is a mere technicality. The Court has ample powers under
Section 151 CPC to modify/rectify/alter any order passed to advance the
cause of substantive justice. Further, technicalities of procedure should not
defeat a good case of any party. Hence, taking the submissions made by the
plaintiff to be correct that an ordinary/layman is not aware of the intricacies
of law and that the non-seeking of permission to file fresh suit when the
earlier one was withdrawn only due to non awareness of the procedure of
law, I allow the present application of the plaintiff/applicant and the order
dt.25.01.2012 is modified to the extent that plaintiff/applicant is at liberty to
file the fresh suit.
Application is allowed accordingly.
File be consigned to the Record Room after due compliance."
(underlining added)
4. I completely agree with the aforesaid observations because courts
always have inherent powers to prevent injustice and once there is no
specific bar in the CPC for modifying an order, and that too in order to
further the interest of justice, it cannot be argued that the courts do not have
inherent powers to modify an order of withdrawing of suit by stating that
liberty has been granted to file a fresh suit.
5. Learned counsel for the petitioner sought to place reliance upon the
judgment of the Supreme Court in the case of State of West Bengal & Ors.
Vs. Karan Singh Binayak & Ors. AIR 2002 SC 1543, and in which
judgment there are observations that a party to a suit cannot re-open settled
matters, but, these observations in the judgment in the case of State of West
Bengal (supra) will not apply because in that case the litigant was seeking to
open a matter settled by judicial proceedings nearly 40 years back through
an application under Section 151 CPC, and therefore the same was rightly
denied by the court, inasmuch as merits of the matter cannot be re-opened
and that too after a period of 40 years.
6. The judgment which applies to the facts of the present case is in
fact the judgment of the Supreme Court in the case of Vimlesh Kumari
Kulshrestha Vs. Sambhajirao (2008) 5 SCC 58, and which holds that the
provision of Order XXIII Rule 1 CPC barring a subsequently instituted suit
cannot come into play if the subsequently instituted suit is filed before
withdrawal of the first suit. It is not disputed on behalf of the petitioner
before me that before the order of the withdrawal of the first suit on
25.1.2012, the second/subsequent suit for possession was already filed on
24.12.2011. Therefore, the ratio in the case of Vimlesh Kumari (supra)
squarely applies and the subsequent suit will not be barred under Order 23
Rule 1 CPC, besides the fact that the trial court by the impugned order has
rightly allowed the application for modifying the order dated 25.1.2012 by
permitting/giving liberty to file a fresh suit for possession etc in accordance
with law.
7. In view of the above, there is no merit in this petition, and the same is
therefore dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J
SPETEMBER 03, 2014
KA
