Partly allowed

M/S Sunil Farm Engineering Companyl Thr Managing Partner v. the State of Maharashtra and Ors.

Bombay HC26 Sept 2013CRA/237/2012

Case brief

AI extract

What is this about?

High Court Bench at Aurangabad allowed a Civil Revision Application partly. The Court upheld the dismissal of the suit as infructuous due to supervening events but set aside the order denying permission to withdraw and filed fresh suit.

What did the court decide?

The application to withdraw the suit with liberty to file a fresh suit was allowed; the order dismissing it was set aside.

M/S Sunil Farm Engineering Companyl Thr Managing Partner… — Specific Performance | Bombay HC (2013)

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(1)

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cra237-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CIVIL REVISION APPLICATION NO. 237 OF 2012

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M/s Sunil Farm Engineering
Company

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PETITIONER

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VERSUS

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The Executive Engineer,
Maharashtra Jeevan Pradhikaran
Works Division, Station Road,
Aurangabad RESPONDENTS

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.....

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Mr. J.N. Singh, advocate for the petitioner.
Respondents No. 1 to 3 are deleted.
Mr. Deepak P. Bakshi, advocate for respondent (No. 4).

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.....

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CORAM : M.T. JOSHI, J.

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DATED : 26th September, 2013

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ORAL ORDER :

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1.Rule. Rule made returnable forthwith. With

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consent of learned counsel for the parties, the Civil
Revision is heard finally.

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2.Aggrieved by the order dated 19.10.2011

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passed by the learned Civil Judge, Senior Division,
Aurangabad below Exhibit-1 in Regular Civil Suit No.

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937/2005, holding that the suit has become

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(2)

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infructuous and thereby dismissing the same and also
aggrieved by dismissal of the application (Exh-55)
for permission to withdraw the suit with liberty to
file fresh suit, the present Civil Revision
Application is filed.

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3.The dispute between the parties appears to

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be regarding issuance of tender notice dated
16.11.2005 by the respondent – public authority. The
present petitioner prayed in the suit that the said
tender notice issued by the respondent/defendant be
declared as illegal, null and void. Next of the
relief was for grant of permanent injunction
restraining the respondent/defendant from allotting

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the work. During the pendency of the suit, the
temporary injunction, as not pressed, was not granted
restraining the defendant/respondent from allotting

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the work. Ultimately, the work order was issued on

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the basis of said tender notice to another
contractor. In view of these facts, the present
respondent filed an application at Exhibit-53
claiming that the suit has become infructuous due to

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the subsequent events. The trial Court passed a

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(3)

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reasoned order and ultimately vide the order passed

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on the plaint i.e. Exhibit-1, the trial Court held
that as the cause of action did not survive, the suit

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has become infructuous and therefore, it was
dismissed under section 151 of the Code of Civil
Procedure. Hence, the present civil revision
application.

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4.The present petitioner had also filed an
application (Exhibit-55), seeking permission to
withdraw the suit with liberty to file fresh suit on

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the same cause of action. The learned trial Court has
dismissed the said application also.

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5.It was submitted on behalf of the

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respondent/defendant that fresh tender was issued by

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the defendant and the work was completed from another
contractor. The amendment to the pleading about the
change of contractor is rejected by the trial Court.
Therefore, the application for permission to withdraw

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the suit would not be maintainable. The trial Court

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came to the conclusion that as the suit was filed for
declaration and perpetual injunction as regards
tender notice dated 16.11.2005, no useful purpose

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(4)

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will be served by granting permission because the
work has been completed by the defendant. It was
further observed that the relief of compensation is
not in respect of the same subject matter.
Therefore, the permission to withdraw the suit with
liberty to file fresh suit was not granted as it was
held that there is no formal defect in the suit.

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6.Mr. J.N. Singh, learned counsel for the
petitioner submits that the learned trial Court erred
in holding that the suit has become infructuous due
to the circumstances those have occurred after filing
of the suit. He alternatively submitted that even if
it is held that the suit has become infructuous, then
because of supervening circumstances, atleast
permission to withdraw the suit with liberty to file
fresh suit ought to have been granted as the claim

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for compensation would be based on the illegal tender
notice dated 16.11.2005.

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7.On the other hand, Mr. D.P. Bakshi, learned

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counsel for the respondent (No. 4) i.e. the original
defendant, submits that the relief of declaration and
permanent injunction as regards tender notice dated

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(5)

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16.11.2005 was based on distinct cause of action than

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the completion of work on a fresh tender notice and
therefore, since there is no formal defect in the
suit, because of which the suit would have been
ultimately dismissed, the learned trial Court was
right in rejecting the application for permission to
withdraw the suit with liberty to file another suit.

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8.Taking into consideration all the facts on
record, in view of the circumstances those have
occurred after filing of the suit, the reliefs those
were prayed for by the present petitioner i.e. for
declaration and injunction did not survive and
therefore, the learned trial Court was right in
holding that the suit has become infructuous.
However, at the same time, when the petitioner/
plaintiff has filed an application for permission to
withdraw the suit with liberty to file fresh suit,
finding that only because of the supervening
circumstances, the suit has become infructuous and as

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to the facts as to whether the cause of action for
claiming compensation or any other relief on the
basis of tender notice dated 16.11.2005, will have to

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(6)

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be decided on merit of the case, if any suit at all
is filed, the learned trial Court ought to have
permitted the present petitioner/plaintiff to
withdraw the suit and ought to have granted liberty
to file a fresh suit. Whether the work was carried
after issuing fresh tender notice or whether the work
order was issued on the basis of impugned tender
notice would be all the matter to be decided on merit
by the trial Court.

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9.Mr. D.P. Bakshi, learned counsel for the

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respondent further submitted that filing of the next

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suit would be hit by limitation. However, the
respondent/defendant can very well raise all the
legal and valid objections as to the maintainability
of the fresh suit and those need not be considered
here while granting such permission. With these
observations, the following order :

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10.The Civil Revision Application is partly

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allowed, without any order as to costs. The

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declaration of the learned trial Court that the suit
has become infructuous is hereby held valid.

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(7)

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However, the order below Exhibit-1 and Exhibit-55
dismissing the suit without granting permission to
the petitioner/plaintiff to withdraw the same with
liberty to file fresh suit, is hereby set aside.
Instead, the application (Exh-55) is hereby allowed.
The petitioner/plaintiff is allowed to withdraw the
suit with liberty to file fresh suit.

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11.In view of the above findings and order, the
application (Exh-46) for refund of the excess court
fees would also stand revived upon which the learned
trial Court shall pass fresh orders. Rule is made
absolute in above terms.

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[ M.T. JOSHI ] JUDGE

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npj/cra237-12

M/S Sunil Farm Engineering Companyl Thr Managing Partner v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

M/S Sunil Farm Engineering Companyl Thr Managing Partner v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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