Whether a person can file second suit simply by filing withdrawal pursis in first suit?

 Considering that the suit in question was beyond the pecuniary jurisdiction the Application came to be filed for withdrawal of the proceedings under the provisions of Order 23, Rule 1(3) which reads as under.

(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 subjectmatter

of such suit or such part of the claim.

9. Plain reading of the provisions indicate that where the Court is

satisfied that there are sufficient grounds for allowing the plaintiff to institute the fresh suit for the subject matter of the suit or part of the claim, it may grant permission to the Plaintiff to withdraw the suit with liberty to institute a fresh suit in respect of the subject matter of the suit. The provisions contemplate that sufficient ground must be shown for the purpose of allowing the Plaintiff to institute a fresh suit. In the background of the statutory provisions, if we consider the pursis which has been filed on 19th December, 2022 which is annexed at page No. 58 of the Petition the pursis does not gave any reason much less sufficient grounds for permission to withdraw with liberty of the Court to file a fresh suit. In such an event, the City Civil Court, in the absence of the sufficient reasons, was well justified to permit the withdrawal of the suit unconditionally, but refused to grant the leave as prayed. This is for the reason that the litigants cannot be permitted to institute fresh proceedings unless sufficient reasons are made out for the same as the multiplicity of the proceedings vexes on the Defendants again and again. To safeguard the interest of the Defendants by reason of subsequent litigation on same cause of action, the statute has provided that there must be sufficient grounds for permitting a party to withdraw the proceedings with liberty to file fresh suit. It was thus incumbent upon the Petitioner-Plaintiff to raise sufficient grounds in the Application seeking withdrawal with liberty as prayed. It would also be pertinent to note the replies which were filed to the pursis, whereby the Defendants had given no objection only for withdrawal of the suit unconditionally. In such an event, the Petitioner ought to have been put on guard that in the absence of any reason and considering the objection of the Respondents, the liberty as such would not have been granted. Even at that stage the Application could have been withdrawn and detailed Application filed, however, the same was not done.

10. It is apparent that the reason why the Application was not withdrawn was that the Petitioner had already affirmed a suit, and as per the contention of the learned counsel for the Petitioner it was filed later on but the fact remains that the Petitioner has made false statement in the plaint that the liberty has been granted by the City Civil Court on 6th December, 2022, knowing fully well that no such liberty is granted and in fact, the pursis itself had been filed on 19th December, 2022.

11. The reliance placed by learned counsel appearing for the Petitioner on the decision in the case of Manohar v. Ravindra Rajaram Gawande, dealt with the case as regards the post facto permission to be granted even after institution of the filing of subsequent suit. The facts in the present case are gross inasmuchas being aware that no such pursis has been filed on 6th December, 2022, a solemn statement on oath is made before this Court that liberty has been granted by the City Civil Court on 6th December, 2022. In my opinion no judgment can assist the case of such a litigant who makes false statement on oath. Pertinently, the Petitioner did not wait for the adjudication of the present Petition which was filed on 5th January, 2023. It was expected that at the outset, a submission would be made that although the suit was affirmed on 19th December, 2022, the same was filed on 11th January, 2023 and unconditional apology would be tendered that inadvertently a false statement is made in the suit. However there was no such submission and it is only upon the said fact being pointed out by the learned counsel for the Respondents that this Court became aware of this fact.

Even if the law laid by the said authority is accepted, considering the pursis which has been filed on record which is completely bereft of any reasons as to why the liberty as sought ought to be granted, in my opinion, the impugned order cannot be said to be legally unsustainable.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 2459 OF 2023

Vijay L. Pawar & Anr Vs Brihanmumbai Municipal Corporation 

Coram : Sharmila U. Deshmukh, J.

Date : July 20, 2023.

Print Page

Whether one party to divorce by mutual consent can withdraw his consent for divorce?

Adverting to the above principles of law it cannot be said that there was any legal bar for the petitioner to withdraw his consent as recorded in the pursis when the pursis referred that "both the parties have agreed to take divorce by consent." In any event if at all the parties were to maintain their consent for divorce as stated in the pursis, then the requirement of law was that the parties, would present an appropriate application by complying necessary requirements provided by Section 28 of the Special Marriage Act and seek a decree of divorce by mutual consent. However, before such an application/petition could be presented, the petitioner intended to withdraw his consent by the application on which the impugned order is passed. In my opinion, considering the aforesaid clear position in law there was no legal impediment for the petitioner to withdraw his consent as recorded in the pursis. The petitioner having withdrawn his consent, the necessary consequence would be that the family Court would be required to proceed and adjudicate the petition on the issue of divorce on all the grounds which are available to the parties. Thus, considering the requirement of law it was not proper and appropriate for the family Court to reject the application of the petitioner to withdraw the joint pursis dated 25 July 2015. The impugned order is manifestly illegal.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 12862 and 12863 of 2017

Decided On: 22.01.2018

 Vishal Nitinkumar Kondhia Vs. Jahnvi Vishal Kondhia

Print Page

Whether certified copy of pursis can be exhibited?

At that time, certified copy of the pursis filed by the parties was produced on record but the learned Additional Sessions Judge held that it was not a public document and not directly concerned with the witness and he declined to exhibit it. We have gone through said document which is a certified copy of pursis filed by the present appellant. It is signed by Advocate of the appellant who identified the signatory. It is also endorsed by the Judge who has recorded the same. Considering Sections 74, 79 and 80 of the Indian Evidence Act, this document ought to have been admitted in evidence. The learned Additional Sessions Judge, in our opinion, has committed error in not exhibiting and admitting it in evidence. 

Bombay High Court

Shaikh Abdul Rahim @ Sk. Chand S/O ... vs The State Of Maharashtra, (Copy Be ... on 10 March, 2008

Equivalent Citation: II(2009)DMC10

Bench: N H Patil, P Borkar

Print Page

When consent decree can be challenged on ground upon which agreement can be challenged?

In Ruby Sales and Services (P) Ltd.'s case (supra), the Apex Court has held that an agreement on the basis of which the consent decree is drawn, still remains an agreement and it is subject to all rights and liabilities which any agreement may suffer. The Apex Court has further held that having a stamp of Court affixed will not change the nature of the document and that a compromise decree does not stand on a higher footing than the agreement which preceded it. The Apex Court has further held that a consent decree is a mere creature of the agreement on which it is founded and is liable to be set aside on any of the grounds which will invalidate the agreement. The above observations were made by the Apex Court in the said matter and the issue was whether a consent decree where under the title to immovable property is conveyed expressly falls under the definition "conveyance" or an "instrument" under Section 2(1) of the Bombay Stamps Act, 1958.

In Shripatrao Dajisa Ghatage's case (supra), the Apex Court has held that compromise pursis can be challenged by a party on the ground upon which agreement can be challenged under the provisions of the Indian Contract Act. In the said case, challenge to the compromise pursis was thrown on the ground that defendant No. 1 who was 85 years old was short of hearing and had not heard the words of the learned trial Court regarding the compromise and he nodded his head under an impression that the suit was adjourned to the next date. In the said case also the challenge was to the entire compromise terms.1

Bombay High Court

Smt. Latabai Narcinha Telang, ... vs Shri Suresh Narcinha Telang And ... on 6 May, 2005

Equivalent citations: 2005 (6) BomCR 389, 2006 (1) MhLj 440

A.P. Lavande, J.

Print Page

Whether one defendant can adopt written statement filed by co-defendants by submitting pursis?

The defendant can raise counterclaim against the plaintiff in respect of cause of action accruing to the defendant either before or after filing of the suit, but before the defendant has delivered his defence. The phrase "delivering defence" is with reference to presentation of written statement. It is true that technically defendant No. 6 has not presented his written statement, however, he has adopted written statement presented by defendant No. 1 and defendant Nos. 1 and 7, respectively. In these circumstances, it would not be plausible to contend that there is no defence raised by defendant No. 6. Technically speaking, there is no written statement presented by defendant No. 6, however, he is entitled to adopt written statement presented by other defendants. It would, therefore, be too technical to contend that there is no defence raised by defendant No. 6 and as such he cannot raise counter-claim.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 1238 of 2008

Decided On: 15.01.2009


Nagnath Jagannath Lomate Vs.

 Narsing Sambha More and Ors.

Hon'ble Judges/Coram:
R.M. Borde, J.
Citation: AIR2009Bom133

Print Page

Whether reply to temporary injunction application can be adopted as written statement by way of pursis within limitation?

This Court observed that the effect of filing such a pursis is that the Written Statement is deemed to have been filed on the date on which the reply was filed to the application for temporary injunction and, therefore, in such a case, there is no requirement of the Defendant making out a case of existence of exceptional or extra ordinary circumstances.

5. In the present case the Petitioners were fully aware of the contents of the reply which was filed way back in February, 2007. As a result of the pursis , the Written Statement will have to be treated as filed on the date on which the said reply was filed and therefore, it will have to be held that there is no delay in filing the Written Statement.

6. The learned counsel appearing for the Petitioners submitted that the delay in filing the pursis has to be explained. Whether it is necessary to explain the delay in filing the pursis will depend upon the facts and circumstances of each case. In a given case, if a Defendant chooses to file such a pursis after the recording of evidence has commenced, an explanation for delay will have to be given by the Defendants while filing such a pursis. If such a pursis of adoption is filed belatedly, the Court may not accept it mechanically. The Court can certainly reject the pursis filed belatedly if it is not bona fide. But otherwise such a pursis will have to be accepted and the reply to application for temporary injunction will have to be treated as the written statement provided the reply has been filed within 90 days of the date of service of summons.

Bombay High Court

Kuldeep Umraosingh Ostwal & Anr vs Chandrakant N. Patel & 10 Ors on 9 February, 2010

CORAM : A.S.OKA, J.

DATE : 9TH FEBRUARY, 2010

Print Page