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.
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