9911796707
TMI Blog2006 (2) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... Nowlakha filed Title Suit No. 32 of 2003 in the Court of Civil Judge, (Senior Division) 9th Court at Alipore, for specific performance of the agreement purported to have been cancelled and for temporary injunction to restrain the petitioners from alienating the suit premises. Thereafter, on 30th October, 2003, the said Respondent No. I applied to the Court for leave to withdraw the suit on the ground that since there were talks of settlement between the parties, he no longer wished to proceed with the suit. No leave was prayed for to file a fresh suit on the same cause of action. On 11th July, 2004, the learned Judge allowed the respondent No. I to withdraw the suit, but without liberty to file a fresh suit on the same cause of act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d service of notice on the opposite parties and directed status quo to be maintained for a period of eight weeks. On 4th February, 2005, the learned Single Judge of the Calcutta High Court heard and allowed the revisional application, being C.O. 3982 of 2004, and restored Title Suit No. 32 of 2002 for trial before the Civil Judge, (Senior Division) 9th Court at Alipore. Since according to Shri Banerjee and the other co- owners of the premises, their learned advocate was unable to attend the hearing on 4th February, 2005, on account of personal reasons, they filed an application, being CAN No. 1999 of 2005, before the said learned Judge for recall of his order dated 4th February, 2005. The same was heard and dismissed on contest on 14th Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2005, the Learned Single Judge was of the view that there was no reason to allow the withdrawal of the suit without permission or liberty to file another suit, which reasoning we are unable to agree with, since the plaintiff had not made any specific prayer for such leave, the same is not relevant for the purpose of considering as to whether the Court was within its jurisdiction to restore the suit despite leave not having been asked for nor granted but specifically refused. Appearing for the appellant, M/s. Jet Ply Wood Private Limited and Ors., Mr. Mukul Rohtagi urged that having regard to the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, in the absence of any prayer for leave to file a fresh suit and a speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resorted to subterfuge to wriggle out of the agreement and had misled the Respondent No.1 into withdrawing the suit and it is on account of such misrepresentation that the Respondent No. 1 was entitled in law to have his suit restored. Mr. Singhvi submitted that it would not be correct to contend that the Learned Trial Judge did not have the jurisdiction to withdraw the order passed by him permitting the respondent No.1 to withdraw his suit. What was relevant was whether in the circumstances such a power should have been exercised or not. Since the learned Trial Judge had chosen not to exercise such power, the High Court stepped in, in exercise of its powers under Article 227 of the Constitution to restore the suit filed by the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial Court was entitled in law to recall the order by which it had allowed the plaintiff to withdraw his suit. From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, as follows: It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. Based on the aforesaid principle, the Division Bench of the Calcutta High Court, in almost identical circumstances in Rameswar Sarkar's case, allowed the application for withdrawal of the suit in exercise of inherent powers under Section 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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