The Supreme Court set aside the Family Court order dated 11.05.2017 that allowed withdrawal of a civil suit without granting liberty to file a fresh one while imposing costs, directing a rehearing.
The impugned order dated 11.05.2017 set aside; trial court directed to rehear the application for withdrawal with liberty to file a fresh case.
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FAO NO.03/2017
BEFORE
HON’BLE THE CHIEF JUSTICE MR. T. VAIPHEI HON’BLE MR. JUSTICE S. TALAPATRA
Present:
For the appellant : Mr. A.C. Bhowmik, Sr. Advocate, Mr. D.C. Roy, Advocate, Mr. D. Sarkar, Advocate. For the respondent : Mr. B.N. Majumder, Advocate.
26.07.2017.
Heard Mr. A.C. Bhowmik, the learned Sr. Counsel assisted by Mr. D.C. Roy and Mr. D. Sarkar, the learned counsel for the appellant. Also heard Mr. B.N. Majumder, the learned counsel for the respondent.
The petitioner in this appeal is questioning the legality of the order dated 11.05.2017 passed by the learned Judge, Family Court, West Tripura, Agartala in T.S. (Div.) No.222 of 2014 with reference to C.M. No.23/2017 allowing him to withdraw the suit, but without expressly granting his prayer to grant him the liberty to file a fresh suit subject to payment of `10,000/- (rupees ten thousand) as costs.
After hearing both the learned counsel and after carefully reading the impugned order and on considering the fact that a cost of `10,000/- was also imposed upon the petitioner though he was allowed to withdraw the suit without granting him the liberty to file a fresh case, we are of the view that there is apparent non-application of mind by the learned Judge, Family Court to the application of the petitioner in the true perspective. There is also an observation made by the trial Court to the effect that there is no law which could prevent the petitioner from (not?) prosecuting his case, which inevitably raised some doubt as to whether the trial Court was intending to say that there was no law that could have prevented him from prosecuting his case.
On considering all these factors, we are of the view that the application of the petitioner to withdraw the suit with a
FAO NO.03/2017
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liberty to file a fresh case was not given due consideration by the trial Court. If a cost of `10,000/- was to be imposed upon the petitioner as is done here, he should have been granted the liberty to institute a fresh suit as well or such cost should not have been imposed him if he had no intention granting the liberty to file a fresh suit. In our considered view, it was imperative on the part of the learned Judge to have applied his mind not only on the prayer of the petitioner for withdrawal of the suit but also on the second limb of his prayer for granting the liberty to file a fresh suit. Having omitted to do so, the interference of this Court in the impugned order is called for.
Consequently, the impugned order dated 11.05.2017 is hereby set aside. The learned Judge, Family Court, West Tripura, Agartala is directed to re-hear the application of the petitioner for withdrawal of suit with a liberty to file a fresh case and dispose of the same in accordance with law.
The parties are, therefore, directed to appear before the learned Judge, Family Court, West Tripura, Agartala on 09.08.2017 for further proceedings.
The appeal stands disposed of.
JUDGE CHIEF JUSTICE
Pulak
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2 issues framed by the court
Whether an order allowing withdrawal of suit without liberty to file a fresh case and imposing costs was made with application of mind.
Whether the trial court erred in not applying mind to the second limb of the prayer for liberty to file a fresh suit.
1 provisions across 1 enactments
Petitioner
Respondent
T. Vaiphei
S. Talapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
