Partly allowed

Smt. Uma Agrawal v. M/s J. P. Builders

Chhattisgarh HC9 Oct 2017FA/38/2017

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed withdrawal of an appeal filed for reversal of dismissal of a plaint for insufficiency of court fees. The court held that if the suit is maintainable, a second suit can be filed without liberty and did not express an opinion on the liberty prayed.

What did the court decide?

Appeal dismissed as withdrawn; clarified that a fresh suit can be filed if the original suit is maintainable.

Smt. Uma Agrawal Vs M/s J. P. Builders — Civil Procedure and Limitation | Chhattisgarh HC (2017)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA No. 38 of 2017

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Smt. Uma Agrawal, D/o Brijmohan Likhmania, Aged About 58 Years, W/o Jagdish Agrawal, R/o Near Guarishankar Temple, Riagarh, District Raigarh, Chhattisgarh, Revenue District Raigarh, Chhattisgarh ..............(Plaintiff)

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---- Petitioner

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Versus

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M/s J. P. Builders Near Gandhi Chowk, Bilaspur, Tahsil & District Bilaspur, Chhattisgarh

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Sandeep Kedia S/o Jagdish Kedia, Aged About 40 Years, R/o Near Gandhi Chowk, Bilaspur, Tahsil & District Bilaspur, Chhattisgarh

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Naresh Likhmania S/o Brijmohan Likhmania, Aged About 55 Years R/o Balaji Rice Mill, Main Road Torwa, Bilaspur, Tahsil & District Bilaspur, Chhattisgarh

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Suresh Kumar Likhmania S/o Brijmohan Likhmania, Aged About 60 Years R/o Station Road Akaltara, Tahsil Akaltara, District Janjgir-Champa, Chhattisgarh

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Smt. Premlata Kedia W/o Shri Mohanlal, Aged About 50 Years D/o Brijmohan Likhmania, R/o Mohan Haveli, Chandrapur, District Janjgir-Champa, Chhattisgarh

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Pawan Kumar Kedia Aged About 57 Years S/o Balkishan Kedia, R/o Saisharan Vyapar Vihar Road, Bilaspur, Tahsil & District Bilaspur, Chhattisgarh

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Nawal Kedia Aged About 55 Years S/o Balkishan Kedia, R/o Saisharan Vyapar Vihar Road, Bilaspur, Tahsil & District Bilaspur, Chhattisgarh

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State Of Chhattisgarh, Through Collector, Bilaspur, Chhattisgarh

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---- Respondents

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For Petitioner For Respondent-State

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Shri Rajeev Bharat, Advocate Shri Rajendra Tripathi, PL

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Hon'ble Shri Justice Prashant Kumar Mishra Hon'ble Shri Justice Arvind Singh Chandel

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Order On Board

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09/10/2017

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An application under Order 23 Rule 1 CPC has been preferred seeking withdrawal of the present appeal with liberty to institute a fresh suit as per the provisions contained under Order 7 Rule 13 CPC.

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The appellant/plaintiff's suit has been dismissed under Order 7 Rule 11 (c) CPC for her failure to pay the requisite court fee on the plaint. In this appeal also, the appellant has not paid the adequate court fee, which she should have paid in the plaint.

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Order 7 Rule 13 CPC provides that the rejection of the plaint on any of the grounds hereinbefore (Rule) mentioned shall not of its own force preclude the plaintiff from presenting a fresh suit in respect of the same cause of action. The provision is thus clear in terms that if the appellant's suit is otherwise maintainable, rejection of the plaint under Order 7 Rule 11 (c) CPC would not preclude the plaintiff in presenting a fresh suit.

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In the matter of Smt. Kalawati and others vs. Gopal Prasad Shrivastava passed in FA No.134/2017 on 26.07.2017, this Court has held thus in paragraph 7:-

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“For the above liberty prayed for by Shri Prasad, we may profitably refer the decision of the Supreme Court in Shiv Kumar Sharma v. Santosh Kumari¹ , wherein it has been held that in any event, if a second suit was maintainable in terms of Order 2 Rule 4 of the Code, as was submitted by Ms. Luthra, no leave was required to be granted therefor. A civil court does not grant leave to file another suit. If the

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1 (2007) 8 SCC 600

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law permits, the plaintiff may file another suit but not on the basis of observations made by a superior court.”

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In view of the above, while permitting the appellant to withdraw the appeal, we do not express any opinion on the liberty prayed for by the appellant, because if the suit is otherwise maintainable, liberty is not needed. It is also made clear that the question of limitation in the fresh suit, if so filed by the appellant, shall be considered independently by the trial Court.

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The appeal is dismissed as withdrawn with the above observation.

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Sd/Sd/Judge Judge Prashant Kumar Mishra Arvind Singh Chandel

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Nirala

Smt. Uma Agrawal v. M/s J. P. Builders

Case brief

What is this about?

What did the court decide?

Smt. Uma Agrawal v. M/s J. P. Builders

Case brief

What is this about?

What did the court decide?

What the court decided

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