The rights of the party cannot be curtailed in a manner to leave it remediless in all circumstances. The courts would lean towards providing liberty to a party where no decision has taken place at all and no issue on facts or finding has been recorded.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

CM APPL. 17065/2023

1. This is an application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter "CPC") filed on behalf of petitioners seeking withdrawal of the present writ petition bearing W.P.(C) No. 16337/2022.

2. Ms. Kaadambari Singh, learned counsel appearing for the applicants/petitioners submits that by way of the present application, the petitioners seek withdrawal of the present petition for pursuing appropriate legal remedies as may be available to the petitioners in law.

3. Ms. Kaadambari submits that the prayer as made in the writ petition had sought primarily a writ against the respondent no.2 (ICAT) and other respondents were merely proforma parties in the sense that the restraint orders were sought, primarily, against the respondent no.2 International Centre for Automotive Technology (hereinafter as "ICAT") while it was issuing Homologation Certificates behind its back.

4. Ms. Kaadambari submits that the admitted fact also is that they had filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter as "A&C Act") proceedings, in which reliefs qua the respondent no.3 were specifically sought and not clinched against ICAT, in particular. Ms. Kaadambari submits that the petitioners became aware of the TAC certificate/extension of TAC certificate only once the ICAT/respondent no.2 herein, had disclosed alongwith their documents, as to the number of transfer of TAC certificate that had taken place.

5. Ms. Kaadambari submits that they did not even know the nature of such transactions. Learned counsel relies upon the provisions of Order XXIII Rule 3 of CPC and the principles analogous thereto, which are also applicable to the writ proceedings. Ms. Kaadambari further submits that the present application would fall under Order XXIII Rule 1 sub-Rules 3(a) and (b) of CPC to submit that the petitioners cannot be left remediless and having regard to the fact that the arguments in the present petition had been continued only on the question of maintainability of the present petition as also on the point of jurisdiction and no notice having yet been issued in the present petition, such liberty can be granted.

6. Ms. Kaadambari also submits that the suit, which has already been filed before the competent Civil Court at Gurugram, does not contain the same relief as sought in the present petition and in any case that could not come in the way of the petitioner seeking to withdraw the present petition with liberty to take appropriate course to law wherever it is available to the petitioners.

7. Ms. Kaadambari relies upon the judgment of High Court of Andhra Pradesh at Hyderabad in the case of MA Faiz Khan vs. Municipal Corporation of Hyderabad in CRP No. 3428/1997 reported in AIR 1998 AP 414 decided on 20.02.1998 whereby, under similar circumstances the Single Judge of the High Court had, not only permitted the withdrawal but also granted liberty to pursue its remedy elsewhere.

8. Ms. Kaadambari also submits that the respondents had vehemently opposed the present writ petition on the basis of lack of jurisdiction and also had questioned the maintainability of the petition on the contention that it contains disputed questions of fact which could not be entertained under Article 226 of the Constitution of India.

9. Per Contra, Mr. Dayan Krishnan, learned senior counsel appearing for respondent no.3 submits that though respondent no. 3 does not oppose the withdrawal but definitely opposes the withdrawal with liberty, if granted by this Court.

10. Learned senior counsel invites attention of this Court to the provisions of Order XXIII Rule 1 sub-Rule 3 of CPC to submit that having filed a suit already in respect of the larger claims that was raised in the present writ petition and without having availed of such liberty prior to filing the suit, no such liberty can or ought to be granted