Allowed

Ominder Singh v. Ajay Dabra

Himachal Pradesh HC12 Jul 2024FAO(OS)/7/2024

Case brief

AI extract

What is this about?

The High Court allowed the appeal and rejected the plaint in a specific performance suit. It held that since the respondent withdrew a previous suit on the same subject matter via compromise without obtaining court liberty to file a fresh suit, Order 23 Rule 1(4) CPC barred the current litigation.

What did the court decide?

FAO(OS) allowed; impugned order set aside; preliminary issue answered for appellant; plaint rejected under Order 23 Rule 1(4) CPC.

Ominder Singh Vs Ajay Dabra — Specific Performance | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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FAO(OS) No. 07 of 2024 (Previously LPA 214 of 2014). Reserved on: 26.06.2024 Pronounced on: 12.07.2024

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Ominder Singh …Appellant Versus Ajay Dabra …Respondent

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_________________________________________________________ Coram:

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Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting?

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For appellant	: Mr. Vinay Kuthiala, Sr. Advocate with Ms. Vandana Kuthiala and Mr. Diwan Singh Negi, Advocates.
For the respondent	: Ms. Meera Devi, Advocate, for the respondent.

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M.S. Ramachandra Rao, Chief Justice .

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LPA no.214 of 2014

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This Letters Patent Appeal is preferred challenging the order dt. 04.07.2014 passed by the learned Single Judge in C.S. no.12 of 2012 on the preliminary issue as to whether the suit is barred by Order 23 Rule 1(4) of C.P.C.

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An order of this nature cannot be said to be a “judgment” under Clause 10 of the Letters Patent of the Lahore High Court as applicable

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to the High Court of Himachal Pradesh and, therefore, the Letters Patent Appeal as such is not maintainable.

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However, every order passed by a Single Judge on the Original Side is appealable as a First Appeal (Original Side) with the nomenclature FAO(OS) as per Rule 11(1)(i) of the High Court of Himachal Pradesh Case Flow Management (High Court) Rules, 2005. 4. Therefore, the said LPA is converted into an FAO(OS) under Rule 11 of the said Rules and is being disposed of as such.

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FAO(OS) No. 07 of 2024

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The suit C.S. no.12 of 2012 had been filed by the respondent on 06.03.2012 seeking (a) a decree of specific performance of an Agreement dt. 11.10.2006 in respect of land comprised in Khata/Khatauni no.137/214 and Khasra nos.1520 to 1522, Kita-3, measuring 0-18-60 hectares (46 biswas), situated in Mohal & Phati Palchan Kothi, Tehsil Manali, District Kullu, H.P., and (b) for a permanent prohibitory injunction restraining the appellant from selling, alienating, transferring, encumbering or changing the nature of

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the said land and (c) also from interfering with the possession of the respondent.

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Written statement was filed by the appellant contending that the

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suit is not maintainable and is an abuse of process of law in view of the fact that the respondent had previously filed Civil Suit no.52 of

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2010 before this Court against the appellant and others in respect of

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the same subject matter and on the same cause of action; that the appellant was duly served in that suit; but the said suit was withdrawn by the respondent without seeking liberty from this Court to institute a fresh suit in respect of the subject matter of the suit or in respect of the claim in the suit vide order dt. 22.10.2010. Other defences were also taken.

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Thereafter, a preliminary issue was framed on 06.09.2012 by this Court to the following effect:-

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“Whether the suit is barred by Order 23 Rule 1(4) of the CPC and the plaint is liable to be rejected?

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The order of the learned Single Judge and consideration by the Court of the same

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The said issue was decided in favour of the respondent/plaintiff by the learned Single Judge and it was held that the suit cannot be held to be barred under Order 23 Rule1(4) of the CPC and so the plaint cannot be rejected.

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The learned Single Judge, in the impugned order, at Para-12 referred to the application under Order 23 Rule1 read with Section 151 CPC, being OMP no.438 of 2010 in the previously instituted suit C.S. no.52 of 2010 and the order passed therein on 22.10.2010.

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He noted that in the application OMP no.438 of 2010, the respondent had specifically stated that the parties to the suit had effected a compromise involving the subject matter of the suit as also several other larger issues relating to cases filed by defendants no.2 to 4 in C.S. no.52 of 2010 against the plaintiffs therein and prayed for withdrawal of the C.S. no.52 of 2010 with liberty reserved to approach the High Court again should the need so arise subject to just exceptions.

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He noted that in the order dt. 22.10.2010 passed in the said OMP no.438 of 2010, the High Court observed that the application had been filed for withdrawal of the suit C.S. no.52 of 2010, that the applicants/plaintiffs are permitted to withdraw the suit, and the suit was dismissed as withdrawn; and that the High Court in the said order did not specifically grant liberty to the respondent to approach the Court again though it was sought in the said application.

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Before the learned Single Judge, the appellant had placed reliance on the judgments in Mahanth Singh vs. U Ba Yi¹ , M/s Hulas

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Rai Baij Nath vs. Firm K.B. Bass & Co.² , and R. Rathinavel Chettiar and another vs. V. Sivaraman and others³ , to contend that once the suit is withdrawn or any part of the suit is abandoned unconditionally,

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1 AIR 1939 Privy Council 110

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2 AIR 1968 SC 111

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3 (1999) 4 SCC 89

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the plaintiff cannot bring a fresh suit on the same cause of action unless leave of the Court is obtained as provided in Order 23 Rule 1(3) (b)and (c) CPC.

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The counsel for the respondent had relied on the judgments in Hans Raj Akrot vs. State of Himachal Pradesh⁴ , Division Bench judgment of Allahabad High Court in Bharat and others vs. Ram Pratap and others⁵ , Golam Mahomed vs. Shivendra Pada Banerjeet⁶ , Hari Basudev vs. State of Orissa and others⁷ ; and a passage in Mulla’s Commentary on CPC 18^th Edition at Page 2893, that permission mentioned in Order 23 Rule 1(3) CPC need not be given in expressed terms and it can even be implied from the order read with the application in which the order was made.

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The learned Single Judge followed the decisions cited by the respondent before him without stating why the decisions cited by the appellant did not apply.

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The learned single Judge, in our opinion, should have considered the said decisions cited by appellant particularly when they

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were rendered by the Privy Council and the Supreme Court and he ought to have explained why he is preferring the decisions cited by counsel for the respondent rendered by High Courts.

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4 AIR 1989 H.P. 43

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5 AIR 1985 Allahabad 61

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6 1908 ILR(XXXV) Calcutta 990

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7 AIR 2000 Orissa 125

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The second reason given by the learned Single Judge for holding against the appellant on the preliminary issue was that the suit C.S. no.52 of 2010 had been instituted by the respondent in his capacity as a Director of a Company and that the suit C.S. no.12 of 2012 was instituted by him in his individual capacity.

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This finding of the learned Single Judge is factually incorrect because C.S. no.52 of 2010 was filed by the respondent/plaintiff not only as a Director of a Company, by name M/s Himalayan Ski Village Private Limited (which was the 1^st plaintiff therein), but also by the respondent in his personal capacity (as 2^nd plaintiff). This appears to have missed the attention of the learned Single Judge.

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The third reason assigned by the learned Single Judge was the fact that the appellant had no vested right accrued in his favour because of the withdrawal of the previous suit.

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We do not agree with the said finding because if the previous suit was withdrawn unconditionally on the basis of a compromise and the issue is sought to be re-agitated again in the instant suit, naturally the appellant would be forced to contest the new suit, which would involve his time and also expenditure. Thus it causes grave prejudice to the appellant.

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The fourth reason given by the learned Single Judge was that it

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was not open to the learned Single Judge who passed the order on

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22.10.2010 in OMP no.438 of 2010 in C.S. no.52 of 2010 to split up the prayer made by the respondent in OMP no.438 of 2010 by allowing the withdrawal of the suit and refusing liberty to institute a fresh suit in respect of the same subject matter. According to the learned Single Judge, the consistent view of several High Courts including the High Court of Himachal Pradesh, was that if the applicant had sought not only withdrawal of the suit, but also liberty to institute a fresh suit in respect of the same subject matter, the Court has to grant liberty to file the fresh suit while permitting to withdraw the suit in which the application was filed.

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We are of the opinion that it is not open to the learned Single Judge, who is deciding the preliminary issue in C.S. no.12 of 2012 to sit in appeal over the order passed on 22.10.2010 in OMP no.438 of 2010 in C.S. no.52 of 2010. Even if the said order is wrong in law, it would bind the respondent/plaintiff.

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The respondent is also not entitled to collaterally challenge in C.S. no.12 of 2012, the correctness of the order dt. 22.10.2010 in OMP no.438 of 2010 in C.S. no.52 of 2010.

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Thus in the absence of liberty being granted in the said order to institute a fresh suit in respect of the same subject matter, respondent cannot be permitted to file the fresh suit.

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One may also keep in mind the fact that the reason assigned for seeking withdrawal of C.S. no.52 of 2010 in OMP no.438 of 2010 was that the parties to the said suit had effected a compromise not only involving the subject matter of the said suit, but also several other larger issues relating to cases filed by the defendants therein against the plaintiffs.

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Thus, the withdrawal of the suit C.S. no.52 of 2010 was intended to stop further litigation between the parties in view of the compromise entered into between them.

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Obviously, this is the reason why the learned Single Judge while passing order on 22.10.2010 in C.S. no.52 of 2010, did not think it fit to grant to the applicant in OMP no.438 of 2010 the liberty to file a fresh suit on the same cause of action.

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Therefore, there is no question of inferring from the order in OMP no.438 of 2010 passed by the learned Single Judge on 22.10.2010 in CS No.52 of 2010 that he in fact granted such liberty to file a fresh suit to the respondent.

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Obviously, even the respondent understood the said order as an order intended to stop further litigation and that was why he also did not challenge it. 30. As held by the Supreme Court in R. Rathinavel Chettiar’s case (3 supra), the Order 23 Rule 1 provides that a plaintiff can withdraw a suit or abandon a part of his claim

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unconditionally. It creates a right in favour of the plaintiff to withdraw the suit at any time after its institution. Once the suit is withdrawn or any part of the suit is abandoned against all or any of the defendants unconditionally, the plaintiff cannot bring a fresh suit on the same cause of action unless the leave of the Court is obtained as provided by Order 23 Rule 1(3)(b). In other words, a plaintiff cannot while unconditionally abandoning a suit or abandoning a part of his claim, reserves to himself the right to bring a fresh suit on the same cause of action.

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In this view of the matter, the impugned order passed by the learned Single Judge cannot be sustained.

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Accordingly, the FAO(OS) is allowed; order dt. 07.07.2017 passed by the learned Single Judge in C.S. no.12 of 2012 is set aside and the preliminary issue framed by the High Court is answered in favour of the appellant; consequently, the plaint in C.S. no.12 of 2012 is rejected in view of the bar contained in Order 23 Rule 1(4) CPC.

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Pending miscellaneous application(s), if any, shall also stand disposed of.

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(M.S. Ramachandra Rao) Chief Justice

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(Satyen Vaidya) July 12, 2024 Judge (Yashwant)

Ominder Singh v. Ajay Dabra

Case brief

What is this about?

What did the court decide?

Ominder Singh v. Ajay Dabra

Case brief

What is this about?

What did the court decide?

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