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2008 Supreme(Cal) 833
High Court of Judicature at Calcutta
SURINDER SINGH NIJJAR & PINAKI CHANDRA GHOSE
West Bengal Government Employees Cooperative Soc Ltd
Versus
Debabrata Sen
G.A. No. 2059 of 2008
Decided On : 19-08-2008
For the Appearing Parties:Abhrajit Mitra, Anindya Kumar Mitra, Anirban Ray, Arindam Banerjee, C.K. Dutta, D. Bera, D. Mitra, Hirak Mitra, Jayanta Mitra, Jharna Ghosh, Jishnu Saha, Manik Das, Pradip Dutta, Pratap Chatterji, Ranjan Deb, Ritabrata Mitra, Samrat Sen, Sourav Ghosh, Surajit Nath Mitra, Tanoy Chakraborty, Advocates.
Certainly. Based on the provided legal document, here are the key points:
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The appeal challenges an order that dismissed a suit related to a property dispute involving an agreement for sale and subsequent legal proceedings (!) (!) .
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The case history involves a registered agreement for sale, land vesting orders, writ petitions, and multiple suits filed by the appellant for specific performance of the contract (!) (!) .
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The land was initially vested into the State but was later ordered to be de-vested by the court, leading to the filing of suits by the appellant to enforce the agreement for sale (!) (!) .
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The appellant filed multiple suits, including a suit for specific performance and a subsequent suit after the earlier suit was withdrawn. The withdrawal of the earlier suit was under the provision allowing withdrawal with liberty to refile, but the order was specifically unconditional (!) (!) .
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The court examined whether the subsequent suit was barred due to the withdrawal of the previous suit without conditions, referencing the applicable procedural rules and the court’s prior orders (!) (!) (!) .
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The court emphasized that the order for withdrawal was unconditional, and therefore, the bar against filing a fresh suit applied. The court held that the plaintiff could not claim liberty to file a new suit based on the earlier withdrawal order (!) (!) .
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The court also considered the scope of the liberty granted by the Supreme Court order, which was for parties to enforce their rights in accordance with law, not a blanket permission to refile suits regardless of procedural restrictions (!) .
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The relevant procedural rule states that if a suit or part of a claim is withdrawn without permission, the plaintiff is liable for costs and barred from instituting a fresh suit on the same subject matter (!) .
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The court concluded that the earlier withdrawal was unconditional and that the subsequent suit was barred by law, leading to the dismissal of the appeal and affirmation of the lower court’s order (!) (!) .
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The decision underscores the importance of adhering to procedural rules regarding withdrawal and the conditions attached to such withdrawals, emphasizing that unconditional withdrawals trigger statutory bar provisions against re-filing (!) (!) .
Please let me know if you need further analysis or specific legal advice related to this case.
PINAKI CHANDRA GHOSE, J.
(1) THIS appeal is directed against an order dated 19th June, 2008 passed by the Honble Interlocutory Judge, whereby his Lordship was pleased to dismiss the suit being E. O. S. No. 3 of 2006.
(2) THE facts of the case briefly are as follows : on 13th March, 1968, an agreement for sale was registered in favour of the applellant/plaintiff by the owners of the land. The said land was vested into the State under the Estates Acquisition Act vide memo issued by the additional District Magistrate (L. R), 24-Parganas with effect from 22nd september, 1971 and the State of West Bengal granted a long term lease of 30 years in favour of the appellant/plaiintiff. A writ petition was filed challenging the said vesting order. On 24th September, 1992, the Honble writ Court was pleased to set aside the said vesting order and allowed the writ petition filed by the owners.
(3) ON 24th July, 1995, the appellant/plaintiff herein filed a suit being t. S. No. 127 of 1995 in the Court of the Learned 5th Additional District judge at Alipore against the owners for specific performance of the agreement dated 3rd March, 1968. On 4th September, 1995, the appellant/plaintiff herein filed a petition in the said T. S. No. 127 of 1995 for withdrawal of the said suit with a liberty to file afresh. The defendant/owners herein in the said suit filed an objection to the said petition for withdrawal wit liberty to file fresh suit.
(4) ON 22nd November, 1995, the defendant was allowed to file written statement by 29th November, 1995. In the meantime, application for transfer of the suit under Clause 13 of Letters Patent was moved by one of the co-owners in the High Court and His Lordship Ruma Pal, J. (as His Lordship then was) was pleased to grant a stay of the proceeding of the said suit pending before the Alipore Court.
(5) ON 22nd November, 1995, three of the owners of the said properties filed an application being ALP No. 19 of 1995 for transfer of various suits pending in different courts to the High Court under section 24 of the Code of Civil Procedure and Clause 13 of the Letters Patent.
(6) ON 29th November, 1995, the said fact was placed before the District court and the matter was adjourned till 28th December, 1995. On 4th december, 1995, His Lordship Ruma Pal, J. was pleased to issue Rule and directed the parties to file affidavits in the application filed under Clause 13 of the Letters Patent. However, His Lordship was pleased to pass the following order:
"until disposal of this applicaion the ad interim order of stay already passed will continue. This order will not however prevent any party from unconditionally withdrawing any procedure which is sought to be transferred by virtue of this application. All parties to act on a signed copy of the minutes of this order on the usual undertaking. "
(7) ON 20th December, 1995, the said order of the Honble High Court was brought to the notice of the District Court and the defendant Nos. 2 to 4 in the said petition prayed for stay of the further proceedings in compliance with the High Court order and the matter was directed to be placed on the board on 16th February, 1996. However, from time to time, the matter was adjourned and on 4th of March, 1997, the said application filed by the plaintiff/appellant was taken up by the learned 5th Additional District judge, Alipore where the learned Court was pleased to pass the following order :
"perused the Advocates letter dated 11. 3. 96, wherein it has been stated that the Honble Court has been pleased to give liberty to the plaintiff to withdraw the suit. In the circumstances, the petition succeeds. C. F. paid are correct. Hence ordered : that the suit be and the same is withdrawn without costs. "
(8) ON 18th April, 1996, two Mandamus Appeals were filed being F. M. A. T. No. 3357 of 1992 and F. M. A. T. No. 3391 of 1921 before the Court from an order dated 24th of September, 1992 passed in C. O. No. 11737 (W) of 1991. Both the a
