The plaintiff should be allowed to file a fresh suit if the defendants waive the statutory notice.

JUDGMENT - 1. This is a revision application filed by the original plaintiff against an order passed by the learned Civil Judge (J.D.) Poona, on 16th October 1970 holding that the plaintiffs suit stand withdrawn, without liberty to file a fresh suit. The present suit was filed by the plaintiff to challenge a notice issued by the defendant-Corporation cancelling his licence to carry on business. In the Written Statement, a plea was raised that the suit was not maintainable without the requisite statutory notice under Section 487 of the Bombay Provincial Municipal Corporation Ct. In view a written application dated 16th October 1970 for permission to withdraw the suit with liberty to file a fresh suit under Order 23, Rule 1 (2) of the code of Civil Procedure. On that application, the defendants reply was endorsed in the usual manner stating, inter alia, that the defendant-Corporation did not press the point of want of notice under Section 487. On that, the learned Judge of the Court below made an order in which, after setting out the course the litigation had taken and the conduct of the plaintiff, he came to the conclusion that the intention of the plaintiff was to harass the defendant-Corporation by protracting the litigation and he, therefore, declined to allows the suit to be withdrawn with liberty to the plaintiff to file a fresh suit, but made an order whereby the suit stood withdrawn without such liberty. For withdrawing a suit without liberty under Order 23, Rule 1(1) of the Civil Procedure Code, no permissionor order of the Court was required by the plaintiff. The plaintiffs application was for withdrawing with liberty to file a fresh suit under Order 23, Rule 1(1) (2) and, if he learned Judge of the Court below though that that liberty should not be granted, he could reject that application, but he could not make an order whereby the plaintiffs suit stood withdrawn without liberty to file a fresh suit, with the result that the plaintiff would be precluded from filing a fresh suit in respect of the same cause of action as stated in sub rule (3) of Order 23, Rule 1 of the Code of Civil Procedure. The order passed by the lower Court is, therefore, erroneous and must be set aside. The result of this order would ordinarily be that the lower Court would have to proceed with the hearing of the suit in the ordinary course. I am, however, not satisfied with the rejection of the liberty to file afresh suit by the trial Court, in so far as it was based on the defendants having endorsed on the plaintiffs application that they did not press the point of notice under Section 487 of the Bombay Provincial Municipal Corporation Act without station in so many words that they waived the statutory notice under the said section and gave up theri contention in that behalf. The learned Judge of the Court below should therefore ask for a fresh endorsement by the defendants as to whether they are prepared to waive the statutory notice and to give up the contention. After the fresh endorsement is made, the learned Judge should proceed to deal with the application for with drawal of the suit with liberty to file a fresh suit. If he decides not to grant that liberty, he must proceed to hear the suit in the ordinary course.

2. Revision allowed.

Click Here to Read the rest of this document