Monday, 6 May 2019

Whether order rejecting prayer for withdrawal of suit is revisable?

1. The Civil Revision Application impugns the order of a learned Single Judge of the Small Causes Court at Bombay, rejecting the Petitioner's application for the unconditional withdrawal of R.A.E. Suit No. 503/952 of 1999 filed by it against the Respondent and another Defendant.
2. Mr. Jagtiani submitted that the impugned order is not capable of being revised by the Small Causes Court. The question of law that therefore falls for consideration is whether an order rejecting an application to withdraw a suit unconditionally is capable of being revised by the Small Causes Court under Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "The Bombay Rent Act"). I have come to the conclusion that it does. A consideration of this question necessitates a consideration of a question of law of general importance. It is, whether, as contended by Mr. Jagtiani, only those orders that relate to recovery of possession, or rent or fixation of standard rent for which the Bombay Rent Act was enacted are revisable under Section 29(3).
38.(a) The order under Order XXIII Rule 1 of the C.P.C. is different from other orders, in the sense that it does not adjudicate upon the lis between the parties to the suit. An order rejecting an application under Order XXIII Rule 1 of the C.P.C. must be considered differently form other orders while deciding whether or not the order affects the substantive rights of a party. A party has a right to file a suit subject to certain exceptions. He has also a right not to continue with the suit, except in certain circumstances. Whether or not the exceptions apply is a question I am not considered with presently. That will be decided when the application is heard on merits. If the order was granted, it would have brought the suit to an end. The implications of a litigant being forced to pursue a litigation are too obvious to warrant them being listed.
(b) Moreover the expression "substantive rights" used in the authorities I have considered must be understood in the lexical sense. It ought not necessarily to be construed as a right created by statute or any other law. In other words, to be revisable it is not necessary that the order must relate to a provision of substantive law. Even if it relates to a procedural law it would be revisable if it affected substantively the rights of a party.
(c). It must for these reasons be held that an order rejecting an application to withdraw a suit unconditionally would affect the substantive rights of the Plaintiff.
Bombay High Court
Pacific Engineering Co. Pvt. Ltd. vs East India Hotels Ltd. on 5 May, 2004
Equivalent citations: 2005 (1) BomCR 427

Bench: S Vazifdar.
Read full judgment here: Click here
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