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TMI Blog1985 (8) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... o invitation of tenders issued by the State Government for the completion of unfinished work in the Sugar-cane Research Station Building at Bamandanga, P. S. Nakashipara and the Sub-Divisional Health Centre at Fakirdanga, under P. S. Nabadwip both in the district of Nadia, the petitioner submitted his tender which was accepted by the authority concerned who issued the necessary' work order for the said job. The petitioner took up the said job and completed the same within the stipulated time. The tender that was invited by the State Government did not contain anything regarding any construction on the ground floor of the said Research Station Building at Bamandanga. 3. It is the case of the petitioner that during the progress of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has paid on the plaint of the said suit the maximum court-fee of ₹ 10,000/-. 6. It is alleged that the learned Assistant District Judge took the view that the dispute between the parties should also be referred to arbitration and fixed March 20, 1985 for the purpose. As the petitioner was not willing to go to arbitration, he filed an application under Order 23. Rule 1 of the Code of Civil Procedure for the withdrawal of the suit without considering the prejudice that would be suffered by him. In the said application, he did not pray for leave to file a fresh suit on the same cause of action. On March 20, 1985, the learned Assistant District Judge passed an order dismissing the suit for non-prosecution on the said application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Umesh Chandra Manna v. Amar Nath Jana, AIR 1929 Cal 158, a Division Bench of this Court has held that a Court invoking the aid of the provision of Section 151 of the Code of Civil Procedure for the purpose of restoring a suit which had been dismissed in exercising a jurisdiction not vested in it by law. In that case, the suit was dismissed without adjudication. An application was made by the plaintiff under Order 47, Rule I and Section 151 of the Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that Order 47, Rule 1 had no application but the suit should be restored under the provision of Section 151. In that context, it was held that the Court had no jurisdiction to restore a suit under Section 151. In the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t power. 12. In Thomas George v. Skariah Joseph. , a learned single Judge of the Kerala High Court has taken a slightly "liberal view. It has been held by the learned Judge that the plaintiff can withdraw his application for withdrawal of his suit before the Court takes cognizance of the earlier withdrawal application. 13. On the other hand, it has been held by Oldfield. J. of the Madras High Court in Lakshman Pillai v. Appalwar Alwar Ayyangar, AIR 1923 Mad 246, that on general principles there does not seem to be any reason why withdrawal of a withdrawal should not be recognised, if there is no question of undue prejudice to any other party to the proceeding. 14. The scope of Section 151 is very wide. Where there is no provision un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst all inconveniences, and the Court has, therefore, in many cases where the circumstances warrant it, and the necessities of the case require it, to act upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which alone it exists. 15. It will now be profitable to refer to a decision of the Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, . The Supreme Court observed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, that would be no ground to refuse to do justice. If through mistake the plaintiff has withdrawn the suit, the Court, in our view, will not be powerless to set aside the order of dismissal of the suit and allow the withdrawal of the application for withdrawal of the suit in exercise of its inherent power. Most respectfully we beg to differ from the view that the Court has no jurisdiction to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power as recognised under Section 151 of the Code of Civil Procedure. It is, however, made clear that there must be some justifiable reasons for allowing withdrawal of the application for withdrawal of the suit. 17. For the reasons aforesaid, we set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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