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JAMMU AND KASHMIR HIGH COURT
(Through Virtual Mode)
Javed Iqbal Wani, J.
Radhika Pruthi – Appellant
versus
Cantonment Board – Respondent
FAO No.31 of 2024 C/w CM (M) No.142 of 2024
Decided on 3.1.2025
Counsel for the Parties:
For the Appellant:Mr. Hakim Suhail Ishtiyaq, Advocate
For the Respondent:Mr. Muzaffar Ahmad Dar, Advocate Mr. T. M. Shamsi, DSGI with Mr. Faizan Ahmad Ganie, CGSC
IMPORTANT POINT
Withdrawal of suit – Dismissal of a suit on the ground of concealment of a material fact has very serious consequences and cannot be resorted to by speculations or inferring by a process of deduction from statement made in written statement.
Headnote:
Civil Procedure Code, 1908 – Order 23 Rule 1 – Withdrawal of suit – there is distinction between “mistake” and “trickery” – Concealment of a material fact might be fatal to a suit – Dismissal of a suit on the ground of concealment of a material fact has very serious consequences and cannot be resorted to by speculations or inferring by a process of deduction from statement made in written statement – Mere stating that concealment was a concealment of a material fact would not absolve trial court of its duty law has put on it – Appellant has demonstrated bonafide conduct by acting transparently and promptly when discovering order in first suit by taking remedial action against the same – Had there been intent to mislead Court, Appellant could have let earlier suit lapse without pursuing its withdrawal or review – Failure to mention earlier suit does not seem to be deliberate, but stemmed from absence of a formal withdrawal order at the time second suit was filed – Impugned order set aside. (Paras 22, 23, 24 and 26)
Result: Appeal allowed.
JUDGMENT
FAO No.31/2024 —The instant miscellaneous appeal has been filed by the appellant herein being aggrieved of order dated 05.10.2024 by virtue of which the interim application filed by the appellant herein along with the suit has been dismissed by the court of 1st Additional District Judge, Srinagar (for short ‘the trial court’).
2. Facts emerging from the record reveal that the appellant herein claims to be a displaced Kashmiri Pandit, unable to return to her hometown due to the disturbances in the Kashmir Valley, however, with the improvement in the situation and the Government’s assurances to safeguard their lives she decided to return to her native place and claims to have purchased a plot of land measuring 10 marlas covered under Khasra No. 70, Khewat No. 1107, and Khata No. 1396, situated at Mouza Sonwar, Tehsil South, District Srinagar, within the jurisdiction of the respondent.
3. The sale of the said plot of land is claimed to have been formalized through a sale deed executed on 14.05.2022 and registered by the competent authority on 30.05.2022. The land in question is stated to have been purchased by the appellant herein from one Tariq Ahmad Mir, who had obtained the said land vide an exchange deed dated 30.05.2015, executed between the Deputy Custodian (HQ) of the Evacuee Property Department, Srinagar, and himself, and subsequently registered by the competent authority.
4. It has been further stated that after execution of the sale deed, the appellant herein, on 27.06.2022 applied for a building permission for construction of the residential house thereon the said land before respondent 1, which was neither granted nor refused by the respondent 1, as such, the appellant herein informed the said respondent 1 herein about her intention to start construction in view of the legal consequence in the form of Deemed Permission as envisaged under Section 238(6) of the Cantonments Act, 2006 (for short the Act) and when the construction had reached the plinth level, the appellant herein was stopped from doing the same by agents/employees of the respondent 1 herein and was thereafter served with a communication dated 05.01.2023, by virtue of which her application for grant of building permission was returned without any action
5. The appellant herein challenged the said communication in WP(C) No. 803/2024, before this Court, which was subsequently withdrawn on 20.05.2024, with liberty to take recourse to the remedy under law. The decision to withdraw the petition was based on legal advice that the communication was immaterial, as the appellant’s right to construct had already crystallized under section 238(6) of the Act and the delay on the part of the respondent 1 herein in returning the application without any action.
6. Aggrieved by the alleged unlawful interference by respondent 1 herein in raising the construction in question, the appellant herein filed a suit for injunction before the Principal District Judge, Srinagar, which case was transferred to the court of Sub-Judge/Judge Small Causes, Srinagar, on 24.06.2024. On the same day, the Court issued a short notice to the defendant (respondent 1 herein) and scheduled the next hearing for 29.06.2024. The appellant herein contended in the suit that under Section 238(6) of the Act, , failure by the respondent 1 to process the application within the statutory period entitled her Deemed Permission to construct. However, due to a communication gap with her counsel, this crucial fact was not explicitly pleaded in the suit and recognizing that such an omission could be detrimental under Order 6 Rule 6 of the CPC, which mandates that conditions precedent must be distinctly specified in pleadings, the appellant herein sought to withdraw the suit with liberty to file a fresh one including all relevant facts.
7. It is stated that during the hearing of the withdrawal application on 29.06.2024, the Presiding Officer of the court of Sub Judge/Judge Small Causes announced that the
