Point of Law : Section 141 of Code makes applicable to other proceedings, only those provisions of Code which deal with procedure and not those which deal with substantive rights.

ORDER :

Ajithkumar, J.

This is a referred matter.

2. In Seetha Ramachandran @ Seetha Varma and others v. K.B.Radhakrishnan [2012 (4) KLT 856] a learned Single Judge of this Court held that provisions of Order XXIII, Rule 1 of the Code of Civil Procedure, 1908 do not apply to interlocutory applications. The said order was rendered after referring to the judgments of the Madras High Court in Latchayya and another v. Surya Prakasa Rao [AIR 1928 Madras 1165] and of the Calcutta High Court in B.A. Stores Syndicate v. Stores and Engineering Supply Company [AIR 1952 (39) Calcutta 411 (CN 116)]. The said judgments were rendered prior to introduction of the Explanation to Section 141 of the Code, which was in the year 1976. Pointing out that in view of the clarification in the said Explanation that ‘proceedings’ include proceedings under Order IX of the Code as well, the matter was referred to the Division Bench opining that the decision in Seetha Ramachandran requires a relook.

3. Heard the counsel appearing for the petitioners and the learned counsel appearing for the respondent.

4. The learned counsel appearing for the petitioners, Advocate Smt. Girija K. Gopal advanced arguments exhaustively and contended that the provisions of Section 141 of the Code make applicable the procedure for the suits in the Code to all proceedings in a court of civil jurisdiction and therefore, the provisions of Order XXIII Rule 1 apply to every interlocutory application. Its obvious corollary is that when an interlocutory application is withdrawn without obtaining leave of the court to institute a fresh one for the same purpose, no second application is possible, in view of the bar under sub-rule (4) of Order XXIII Rule 1 of the Code. Supporting the view in Seetha Ramachandran, it is further submitted that the amendment brought about to Section 141 of the Code makes the position clearer, inasmuch as the proceedings under Order IX also are brought into its penumbra, in addition to the interlocutory matters in the pending suits which are already covered.

5. Per contra, the learned Counsel appearing for the respondent, Advocate Sri. S.K. Balachandran contended that invoking Section 141 of the Code, what is possible is to apply procedural law only and not substantive law. Therefore, the procedural part of the provisions in the Code intended to apply to the suits can alone be made applicable to the other proceedings in the courts of civil jurisdiction.

6. Both the learned counsel cited slew of decisions to fortify their respective contentions. Decisions having relevance to the points under consideration are referred to at appropriate places. A few decisions, which deal with ‘subject matter’, consequence of ‘not press’, res judicata and when can a suit be permitted to be withdrawn, are not discussed since not required to answer the reference.

7. In Seetha Ramachandran, the question considered was whether an application filed quoting a different provision after withdrawing an earlier application for the same purpose without obtaining leave of the court to file a fresh one is barred under the provisions of Order XXIII Rule 1 (4) of the Code. While answering that question, the learned Single Judge laid down two interwoven principles; (i) Order XXIII Rule 1 deals with suits and part of the claim raised in a suit only and (ii) Order XXIII Rule (1) does not apply to interlocutory applications and the orders passed thereon.

8. In Seetha Ramachandran, the petitioners filed an interlocutory application invoking Section 114 read with Order XLVII Rule 1 and Section 151 of the Code seeking to review the compromise decree passed in the suit. The petitioners, on finding that wrong provisions were quoted, withdrew that application and filed a fresh one with the very same relief invoking the provisions of Order XXIII Rule 3 of the Code. Rejection of that application was in question. The Court placed reliance on not only the decisions in Latchayya and B.A. Stores Syndicate but also th