Jammu & Kashmir & Ladakh High Court: Permission To File Fresh Suit By Trial Court Not A Subject Matter Of Judicial Review In HC’s Supervisory Jurisdiction
The Jammu & Kashmir and Ladakh High Court dismissed a Petition challenging an Order which allowed an application seeking withdrawal of a suit with permission to file a fresh suit on the same cause of action under Order 23 Rule 1 of the CPC.
Justice Sanjay Dhar, Jammu and Kashmir and Ladakh High Court
The Jammu & Kashmir and Ladakh High Court clarified that the permission to file a fresh suit on the same cause of action granted by the Trial Court is not a subject matter of judicial review by the High Court in exercise of its supervisory jurisdiction.
The Court dismissed a Petition challenging an Order passed by the Trial Court, which allowed the Respondent’s application seeking withdrawal of a suit with permission to file a fresh suit on the same cause of action under Order 23 Rule 1 of the CPC. The Petitioner also challenged a subsequent suit filed by the Respondent.
A Single Bench of Justice Sanjay Dhar held, “The learned trial court, while passing the impugned order and granting permission to the plaintiff to file fresh suit on the same cause of action, has exercised its discretion on sound principles of law. The discretion exercised by the trial court cannot be the subject matter of judicial review by this Court in exercise of its supervisory jurisdiction, particularly when the said discretion has been exercised by the learned trial court in accordance with law.”
Advocate Aswad Attar appeared for the Petitioner, while Advocate Rizwan-ul-Zaman represented the Respondents.
Brief Facts
The Respondent (plaintiff) had filed a suit for permanent prohibitory injunction against the Petitioner (defendant) before the Trial Court. During the pendency of this suit, the plaintiff filed an application under Order 23 Rule 1 of the CPC, seeking permission to withdraw the suit with liberty to file a fresh one. The plaintiff contended that due to misleading information supplied to him, a proper description of the property could not be given in the plaint, leading to technical defects and certain formal defects in the suit.
The defendant opposed the Application, arguing it was a delaying tactic and that the alleged defects were not formal defects as contemplated by Order 23 Rule 1 of the CPC. The defendant further contended that the plaintiff was trying to improve his case and that allowing the withdrawal would cause prejudice to the defendant.
Court’s Reasoning
The High Court remarked, “The Legislature has vested power in the court in terms of Order 23 Rule 3 to grant permission to withdraw the suit with liberty to file a fresh suit on the same cause of action provided the conditions mentioned in the said Rule are satisfied. Thus, the trial court is empowered to grant permission to withdraw the suit with liberty to file fresh suit on the same cause of action if sufficient grounds are made out and justice and equity demands so. The argument of learned counsel for the petitioner/defendant is, therefore, is without any substance.”
The Bench explained, “The provisions contained in Order 6 Rule 17 of the CPC cannot circumvent the provisions contained in Order 23 Rule 1 CPC. If the contention of the petitioner/defendant is accepted, then in every case where a suit can be amended, the permission to withdraw the suit cannot be granted. This would render the provisions of Order 23 Rule 1 CPC redundant.”
Consequently, the Court ordered, “For the foregoing reasons, I do not find any merit in this petition. The same is dismissed accordingly. Interim direction, if any, shall cease to be in operation.”
Accordingly, the High Court dismissed the Petition.
Cause Title: Manzoor Ahmad Wani v. Ayaz Ahmad Raina & Anr. (CM(M) No.96/2024)