Dr. Mukundakam Sharma, C.J.
1. The appellant herein by filing the present appeal had challenged the order of the learned Single Judge passed on 18th July 2007 dismissing the application filed by the appellant under Section 10 of the Code of Civil Procedure. The respondent herein is the plaintiff and the appellant the defendant in the suit registered as CS (OS) No.719/2006. There is another suit filed by the appellant in the Calcutta High Court being Suit No.84/2006, which is also between the same parties. After institution of the suit in this Court by the respondent, the appellant as defendant filed an application under section 10 of the cpc, which was registered as I.A. No.8193/2006. The said application was filed by the appellant under section 10 of the cpc praying for stay of the CS (OS) No.719/2006 in view of pendency of a suit in the Calcutta High Court being Suit No.84/2006. In the said application which was registered as I.A. No.8193/2006 it was stated that the suit filed before the Calcutta High Court was the earlier suit as the same was registered on 29th March, 2006 whereas the suit of the respondent registered as CS (OS) No. 719 of 2006 was a subsequent suit as it was registered only on 28th April, 2006 and, therefore, the application.
2. The aforesaid application was considered by the learned Single Judge on 27th July 2006. The records indicate that the appellant withdrew the said application, which was dismissed as withdrawn. The order clearly indicates that the said application was argued and the appellant after some arguments sought permission of the Court to withdraw the said application, which was dismissed as withdrawn. No liberty was sought for or granted for moving a fresh application. The records indicate that the Court granted no such liberty to the appellant. After withdrawing the aforesaid application fresh application was filed which was registered as I.A. No.8613/2006 contending, inter alia, that during the course of arguments on 27th July, 2006 that counsel for the respondents had brought to the notice of the Court the fact that CS(OS) No.719/2006 was filed on 16th March, 2006 which was prior to the date of registration of the suit in the Calcutta High Court on 29th March, 2006, and consequently the said application was withdrawn. The said plea along with all other pleas that were raised before the learned Single Judge were considered. The learned Single Judge, however, on consideration of the records held that an application under section 10 of cpc would definitely fall within the ambit of Section 141 CPC because proceedings under Section 10 CPC is not a proceeding in any Court of civil jurisdiction. It was also held that the said application is barred under the provisions of Order XXIII Rule 1(4) read with Section 141 CPC. It was, however, held by the learned Single Judge that the aforesaid application filed under section 10 of the cpc by the applicant is not maintainable since an earlier application for the same relief had been withdrawn. Being aggrieved by the aforesaid order, the present appeal is filed on which we have heard the learned counsel appearing for the parties.
3. It was submitted before us by the learned counsel appearing for the appellant that the provisions of Order IV Rule 1(3) CPC are mandatory. In support of the said contention, the learned senior counsel appearing for the appellant relied upon a Division Bench decision of the Calcutta High Court in Bhakti Hari Nayak and others vs. Vidyawati Gupta and others AIR 2005 Calcutta 145. According to the Calcutta High Court, as held in the said decision, the plaintiff should comply with Order VI of the Code as amended from time to time. The decision laid down that the plaint must be deemed to have been validly presented from the date of correction of the mistake and not from the date of actual presentation when it contained the mistake, which according to the decision is clearly laid down in the aforesaid provision of Order IV Rule 1(3) of CPC. So far the objections raised by the respondent with regard to the applicability of the provisions of Order XXIII Rule 1 is concerned, it was submitted by the counsel appearing for the appellant that even if no liberty was granted by the Court or obtained by the appellant yet the said provision cannot be made applicable as there can be no waiver against a statute.
4. In support of the said contention learned counsel appearing for the appellant relied upon the decision of the Supreme Court in Manohar Lal Chopra Vs. Rai Bhadur Rao Raja Seth Hiralal AIR 1962 Supreme Court 527. Reliance was placed on para 39 of the said judgment. In the said decision the Supreme Court has held that the provisions of section 10 cpc are clear, definite and mandatory and, therefore, if a mandatory provision is violated such issue should even be considered, analyzed and decided by the Court themselves even if no such plea is raised on behalf of the parties. Counsel appearing for the respondent, on the other hand, however, submitted that the suit in the Court was filed on 16.03.2006 and that on the same date objection was raised by the Registry and, therefore, on 29.03.2006 the same was refilled when again objection was raised by the Registry which was refilled on 15.4.2006, but since objection was raised again the same was rectified and the suit was refilled on 18.04.2006. It was also submitted that the property is situated at Nizamuddin and that a similar application filed earlier was dismissed by the Court as withdrawn by the appellant themselves. In the light thereof it was submitted that the subsequent application is not maintainable particularly when liberty for filing a fresh application was not granted. In support of the said contention, the counsel relied upon the decision of the Supreme Court in Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior and others AIR 1987 Supreme Court 88 and also on the decision of Bombay High Court in Union of India Vs. M/s Sunpac Corporation and others AIR 1986 Bombay 353.
5. There is no denial of the fact that so far the decision of Bombay High Court is concerned, the same was rendered in the light of the unlamented provisions. However, we came across the decision of the Supreme Court in Vidyawati Gupta and others Vs. Bhakti Hari Nayak and others (2006) 2 SCC 777. In the aforesaid decision the Supreme Court has set aside the order passed by the Division Bench in Bhakti Hari Nayak and others vs. Vidyawati Gupta and others AIR 2005 Calcutta 145. What the Supreme Court holds is that the provisions of Order IV Rule 1(3) as amended w.e.f. From 1st July 2002 are only procedural and directory and, therefore, did not automatically render the plaint non est. Such a defect was also held to be curable. When with the leave of the Court the said defendants have filed an affidavit in support of the plaint the rectification has been held effective not merely prospectively but the same is held to have related back to the initial filing of the plaint. The decision, therefore, overrules the decision of the Calcutta High Court, which is relied upon by the appellant.
6. The aforesaid law being binding on all of us shall apply to the facts of the present case. An exemption application was filed. The Court granted leave and, therefore, filing an affidavit in support of the plaint rectified the said defect. That rectification should be held to be effective from the date of initial presentation of the plaint, which is 16.03.2006. The suit filed in the Delhi High Court in the original side of the Delhi High Court was, therefore, a suit filed in prior point of time than the one, which is filed in the Calcutta High Court. The earlier application filed by the appellant under section 10 of cpc was, therefore, rightly withdrawn by the appellant knowing fully well the consequences and being conversant with law as prevailing on the said date of filing the application. The subsequent application, which is filed, is, therefore, misconceived and could not have been entertained. Since the present appeal is being disposed of on the basis of the ratio laid down by the Supreme Court in Bhakti Hari Nayak and others vs. Vidyawati Gupta and others (supra), we are not required to go into the other issue at all, which does not at all arise for consideration in view of the conclusions arrived at by us.
7. We, therefore, also hold that the aforesaid provision of Order IV Rule 1(3) is directory. The suit instituted in Delhi therefore is prior in point of time and the same shall have to be continued and decided in accordance with law. The appeal, therefore, is without any merit and is dismissed accordingly, with costs assessed at Rs.5,000/-.