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2008 Supreme(Cal) 582
High Court Of Calcutta
Biswanath Somadder
Santosh Kumar Jain - Appellant
Versus
Vijay Kumar Jain – Respondent
C.O. No. 364 of 2008
Decided on : Jun 12, 2008
Soumen Sen, Swapan Banerjee, Sourau Mukherjee, Suparna Mukherjee, Debasish Das, M.Rajasekhar, K.N.Doraiswamy
The right of plaintiffs to dismiss a suit for non-prosecution is not absolute and is subject to the provisions of Order 23 Rule 1 sub-rule 4 of the Code of Civil Procedure.
Headnote:
CIVIL PROCEDURE - SUITS - DISMISSAL OF SUIT - NON-PROSECUTION - RIGHT OF PLAINTIFFS TO DISMISS SUIT - SUBJECT TO CONSIDERATION BY COURT IN LIGHT OF ORDER 23 RULE 1 SUB-RULE 4 OF CODE OF CIVIL PROCEDURE - COURT CANNOT PREPONE HEARING OF PLAINTIFFS' PETITION FOR DISMISSAL WITHOUT OBTAINING CONSENT OF ADDED DEFENDANTS WHO HAD MADE OUT A SPECIFIC CASE IN THEIR PETITION UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE.
Fact of the Case:
Plaintiffs filed a suit against two branches of the Indian Bank, seeking declarations and injunctions related to their bank accounts. The plaintiffs obtained interim orders ex parte, restraining the banks from acting on instructions from outsiders. Subsequently, the petitioners, who were added as defendants, filed a petition under section 151 of the Code of Civil Procedure, challenging the interim orders. While hearing the petitioners' petition, the court took up a petition filed by the plaintiffs for dismissal of the suit for non-prosecution and dismissed the suit without hearing the petitioners.
Finding of the Court:
The court held that the plaintiffs did not have an unfettered right to get their suit dismissed for non-prosecution on the mere asking and that the same was subject to be considered by the court in light of Order 23 Rule 1 sub-rule 4 of the Code of Civil Procedure. The court found that the trial court erred in preponing the hearing of the plaintiffs' petition for dismissal without obtaining the consent of the added defendants, who had made out a specific case in their petition under section 151 of the Code of Civil Procedure.
Issues: 1. Whether the plaintiffs had an unfettered right to get their suit dismissed for non-prosecution on the mere asking. 2. Whether the court could prepone the hearing of the plaintiffs' petition for dismissal without obtaining the consent of the added defendants.
Ratio Decidendi: 1. The right of plaintiffs to dismiss a suit for non-prosecution is not absolute and is subject to the provisions of Order 23 Rule 1 sub-rule 4 of the Code of Civil Procedure. 2. The court cannot prepone the hearing of a petition for dismissal without obtaining the consent of the other parties, especially when the other parties have made out a specific case in their petition.
Final Decision: The court set aside the order of the trial court dismissing the suit and directed the trial court to hear both the plaintiffs' petition for dismissal and the added defendants' petition under section 151 of the Code of Civil Procedure afresh.
1. HEARD the learned advocates appearing on behalf of the parties.
2. THIS is an application under Article 227 of the Constitution of India primarily directed against an order, being Order No. 19 dated 7th, January, 2008 passed by the learned Judge, 10th Bench of City Civil Court at Calcutta in Title Suit No. 1843 of 2006.
By the order impugned, the learned Court below while hearing a petition dated 2nd August, 2007 filed by the added defendants under section 151 of the Code of Civil Procedure, proceeded to take up another petition which was filed by the plaintiffs on 9th October, 2007 and on the basis of the said petition of the plaintiffs, passed an order dismissing the suit for non-prosecution. For convenience the order impugned in its entirety is set out hereinbelow: "Both parties file haziras. Today is fixed for hearing the petition dated 2.8.07 under section 151 of the CPC filed by the petitioner/defendants Santosh Kumar Jain and Smt. Radha Rani Jain. Heard both sides learned lawyers in full. During pendency of hearing of the instant petition the plaintiff filed one petition on 9.10.07 stating that the plaintiff is not interested to proceed with the instant suit. But today the same is not fixed for hearing. It is the case of the petitioner/Santosh Kumar Jain and Smt.Radha Rani Jain that the plaintiff had mis-represented the Court and got an interim order. If the plaintiff is not interested to proceed with the instant suit it would be an excise in futility at the cost of the public money and time to pass any order on the petition dated 2nd August, 2007. If the plaintiff committed any error then the petitioner can move against the plaintiff as per law. There is no bar to that effect. The petition dated 19.10.07 which is pending before this Court that can be taken into consideration. Though the plaintiff has not yet turn up, but the learned lawyer for the plaintiff has submitted before the Court that his client is not willing to proceed with the case. Court fees paid are found correct. Hence, it is, Ordered that the instant suit be and the same dismissed for non-prosecution. The petition filed by the petitioner Santosh Kumar Jain and Smt. Radha Rani Jain under section 151 of CPC dated 2.8.07 also disposed of with a note that any further order on the said petition would be infructuous as the suit is dismissed non-prosecution this day. I make no order as to cost."
3. THE petitioners before this Court are the added defendants in the said Title Suit No. 1843 of 2006. For the purpose of deciding the instant case, I am of the view that a set of facts are required to be taken note of. They are as follows:
THE plaintiff's filed a suit in the year 2006 praying inter alia for the following reliefs:
a) For a declaration that the defendant Banks are contractually bound to act according to the instructions of the plaintiffs as its Customers in respect of then Bank Accounts of the four partnership firms mentioned in the Schedule and they have no right to act on the basis of the instructions of outsiders or to cause loses and/or inconvenience to the smooth running and functioning of the said partnership firms and their Bank Accounts with the defendants mentioned in the schedule below.
b) For a declaration to act upon the instructions of the plaintiffs and to rectify the defendants, if any.
c) For an order of permanent injunction restraining the defendant Banks from acting on the instruction of outsiders in respect of the Bank Accounts maintained by the plaintiffs with the defendants as partners of the four partnership firms mentioned in the schedule below.
d) For an order of temporary injunction with ad -interim order in terms of prayer (c) above.
4. THE original parties in the suit were the plaintiffs and two branches of the Indian Bank. Subsequent to filing of the suit, the plaintiffs took out an interlocutory application wherein the learned Court below was pleased to pass the following order on 22nd December, 2006:
"THE record i
