Rameswar Sarkar v. State Of West Bengal And Others

M.M Dutt, J.:— This application under S. 115 of the Code of Civil Procedure filed at the instance of the plaintiff is directed against the order No. 18 dated March 25, 1985 of the Assistant District Judge, 1st Court, Krishnagar, Nadia, whereby the learned Assistant District Judge dismissed the application of the petitioner under S. 151 of the Code of Civil Procedure praying for withdrawal of the application for withdrawal of the suit.

2. The case of the petitioner is that pursuant to invitation of tenders issued by the State Government for the completion of unfinished work in the Sugar-cane Research Station Building at Bamandanga, P.S Nakashipara and the Sub-Divisional Health Centre at Fakirdanga, under P.S Nabadwip, both in the district of Nadia, the petitioner submitted his tender which was accepted by the authority concerned who issued the necessary work order for the said job. The petitioner took up the said job and completed the same within the stipulated time. The tender that was invited by the State Government did not contain anything regarding any construction on the ground floor of the said Research Station Building at Bamandanga.

3. It is the case of the petitioner that during the progress of the above construction work, the State Government further directed the petitioner to undertake completion of the ground floor of the said building at Bamandanga, although the said work was not included in the above tender. Because of his cordial relation with the concerned department, the petitioner agreed to carry out the said job and duly completed the same within the stipulated time as mentioned in the letter dated January 7, 1976 of the Executive Engineer, Krishnagar. The petitioner had to incur a cost of Rs. 4,51,000/- for the execution of the non-tender item of work. It is alleged that despite repeated requests, the State Government did not pay to the petitioner any part of the said amount.

4. The petitioner filed a suit being Title Suit No. 115 of 1979 for the realisation of his dues for the jobs performed by the petitioner as per the tender submitted by him. The dispute between the parties was referred to Arbitration. The Arbitrator made an award in favour of the petitioner and the suit was disposed of by a judgment and decree on the basis of the said award. The State Government had preferred an appeal being F.M.A.T No. 17 of 1973 in this Court which is still pending.

5. The Money Suit No. 10 of 1984 out of which the present application under S. 115 arises has been filed by the petitioner for the realisation of his claim for the works executed by him for the completion of the ground floor of the building at Bamandanga not covered by the tender. The petitioner has paid on the plaint of the said suit the maximum court-fee of Rs. 10,000/-.

6. It is alleged that the learned Assistant District Judge took the view that the dispute between the parties should also be referred to arbitration and fixed March 20, 1985 for the purpose. As the petitioner was not willing to go to arbitration, he filed an application under O. 23, R. 1 of the Code of Civil Procedure for the withdrawal of the suit without considering the prejudice that would be suffered by him. In the said application, he did not pray for leave to file a fresh suit on the same cause of action. On March 20, 1985, the learned Assistant District Judge passed an order dismissing the suit for non-prosecution on the said application of the petitioner under O. 23, R. 1 of the Code of Civil Procedure.

7. It is alleged that thereafter the petitioner came back to his senses and realised that he had done a great blunder. Accordingly, he filed an application under S. 151 of the Code of Civil Procedure on March 22, 1985 praying for withdrawal of the said application for withdrawal of the suit after setting aside the order dated March 20, 1985.

8. The learned Assistant District Judge, however, by the impugned order No. 18 dated March 25, 1985 rejected the petitioner's said application under S. 151 without assigning any reason whatsoever. Hence, this revisional application.

9. The only question that is involved in this revisional application is whether the Court has, in the exercise of its inherent power jurisdiction to allow withdrawal of the application for withdrawal of the suit after setting aside the order dismissing the suit for non-prosecution. It is strenuously urged by Mr. Amarendra Nath Banerjee, learned Advocate appearing on behalf of the opposite parties including the State of West Bengal that the learned Assistant District Judge was perfectly justified in summarily dismissing the application of the petitioner under S. 151, inasmuch as he had no jurisdiction to allow withdrawal of the application for withdrawal of the suit in the exercise of inherent power. In support of the said contention, he has placed much reliance upon some decisions which will be referred to presently.

10. In Umesh Chandra Manna v. Amar Nath Jana, AIR 1929 Cal 158, a Division Bench of this Court has held that a Court invoking the aid of the provision of S. 151 of the Code of Civil Procedure for the purpose of restoring a suit which had been dismissed in exercising a jurisdiction not vested in it by law. In that case, the suit was dismissed without adjudication. An application was made by the plaintiff under O. 47, R. 1 and S. 151 of the Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that O. 47, R. 1 had no application but the suit should be restored under the provision of S. 151. In that context, it was held that the Court had no jurisdiction to restore a suit under S. 151. In the instant case, the petitioner did not file any application under O. 47, R. 1 and there was no finding by the learned Assistant District Judge that O. 47, R. 1 is not applicable. So in view of the facts of the present case, the above Bench decision of this Court is distinguishable.

11. In Smt. Raisa Sultana Begum v. Abdul Ouadir, AIR 1966 All 318, it has been held by a Division Bench of the Allahabad High Court that the plaintiff who has already moved an application under O. 23, R. 1(1) cannot withdraw the application for withdrawal of the suit, even before the orders are passed on the withdrawal application, that is, that the suit is, as far as the plaintiff is concerned struck off from the file. Further, it has been held that this is an assumption that there is withdrawal in fact as well as in law; the question would not arise if there is withdrawal of suit in fact but not in law, for example, when the plaintiff says that the withdrawal was vitiated by the fraud practised on hum by the opposite party, in which case there is no withdrawal in law. Thus it follows from the said decision of the Allahabad High Court that it is not an inflexible rule that an application under S. 151 of the Code of Civil Procedure for withdrawal of the application for withdrawal of the suit is not maintainable at all. In other words, if the plaintiff can make out a sufficient cause, in that case, the Court can allow withdrawal of the application for withdrawal of the suit in exercise of its inherent power.

12. In Thomas George v. Skariah Joseph, AIR 1973 Ker 140, a learned single Judge of the Kerala High Court has taken a slightly liberal view. It has been held by the learned Judge that the plaintiff can withdraw his application for withdrawal of his suit before the Court takes cognizance of the earlier withdrawal application.

13. On the other hand, it has been held by Oldfield, J. of the Madras High Court in Lakshman Pillai v. Appalwar Alwar Ayyangar, AIR 1923 Mad 246, that on general principles there does not seem to be any reason why withdrawal of a withdrawal should not be recognised, if there is no question of undue prejudice to any other party to the proceeding.

14. The scope of S. 151 is very wide. Where there is no provision under the Code of Civil Procedure prescribing any remedy, S. 151 will apply. O. 23, R. 1 provides withdrawal of a suit with or without liberty to file a fresh suit. There is no provision for getting an order passed on withdrawal application set aside or praying for withdrawal of an application for withdrawal of the suit. In such circumstances, in our opinion, the Court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power in a proper and suitable case. In a Bench decision of this Court in Manik Mahato v. Gangapada Mahato, (1977) 81 Cal WN 950, it has been held that the Court has always jurisdiction to entertain and consider an application under S. 151 of the Code of Civil Procedure which is primarily directed for recall of an order passed earlier. Further, it has been held that notwithstanding that an appeal lies against an order rejecting a plaint, an application under S. 151 is maintainable as such an appeal would be of no avail to the plaintiffs as there would be no material before the Appellate Court to go by. In this connection, we may refer to a decision of Lort-Williams, J. in Bhagat Singh Bugga v. Dewan Jagbir Sawhney*, AIR 1941 Cal 670. It has been observed by his Lordship that the Code is not exhaustive; there are cases which are not provided for in it, and the High Court must not fold its hands and allow injustice to be done. Further, it has been held that the law cannot make express provisions against all inconveniences, and the Court has, therefore, in many cases where the circumstances warrant it, and the necessities of the case require it, to act upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which alone it exists.

15. It will now be profitable to refer to a decision of the Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527. The Supreme Court observed as follows:

“It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.”

Thereafter, with regard to S. 151 of the Code, the Supreme Court observed as follows;

“The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.”

In Jaipur Mineral Development Syndicate v. Commr. of Income-tax, New Delhi, AIR 1977 SC 1348, it has been observed by the Supreme Court that the Courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court, and to hold otherwise would result in quite a number of cases in gross miscarriage of justice.

16. In the instant case, according to the plaintiff he could not realise the seriousness of the prejudice that would be suffered by him if the suit was withdrawn without liberty to file a fresh suit. It has been already noticed that the plaintiff has paid the maximum court-fee of Rs. 10,000/-. It is true that the Court has passed an order dismissing the suit for non-prosecution on the application of the plaintiff but in our opinion, that would be no ground to refuse to do justice. If through mistake the plaintiff has withdrawn the suit, the Court, in our view, will not be powerless to set aside the order of dismissal of the suit and allow the withdrawal of the application for withdrawal of the suit in exercise of its inherent power. Most respectfully we beg to differ from the view that the Court has no jurisdiction to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power as recognised under S. 151 of the Code of Civil Procedure. It is, however, made clear that there must be some justifiable reasons for allowing withdrawal of the application for withdrawal of the suit.

17. For the reasons aforesaid, we set aside the impugned order of the learned Assistant District Judge and allow the plaintiffs application for setting aside the order dismissing the suit for non-prosecution on the application of the plaintiff for withdrawal of the suit. We direct that the application of the plaintiff for withdrawal of the suit will stand withdrawn as prayed for.

18. The revisional application succeeds and it is allowed. There will, however, be no order for costs.

19. The court below is directed to dispose of the suit as expeditiously as possible.

J.N Chaudhuri, J.:— I agree.

Revision allowed.