BALWANT SINGH Vs. INDRAPRASTHA BUILDERS PRIVATE LIMITED

JUDGEMENT

(1.) The point involved in the present case is in a very narrow compass. It is: Can a plaintiff having withdrawn his suit under Order 23 Rule I of the Code of Civil Procedure seek revival of the suit through application under Section 151 of the Code? Briefly, the facts are that the appellants filed the petition for eviction of the respondents tenants on the ground contained in Clause (a) to the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act on the ground of non-payment of rent on 2nd September, 1987. On 9th January, 1991, the learned Counsel for the petitioners (appellants herein) made the following statement before the Additional Rent Controller:

(2.) On 29th January, 1991, the appellants filed an application before the Addl. Rent Controller for restoration of the petition under Section 151 of the Code of Civil Procedure. The Addl. Rent Controller dismissed the application on 26th March, 1991 holding that "if petitioners have lost a valuable right to continue the petition, the respondents have gained a valuable right in dismissal of the petition. The application cannot be allowed in equity. It is accordingly dismissed." The appellants filed an appeal against the said order before the Rent Control Tribunal which was dismissed by the Tribunal on 19th September, 1992, essentially taking the view that the petition had been withdrawn unconditionally under Rule I of Order 23 C.P.C. and, therefore, it could not be restored. The present appeal is directed against the said decisions of the authorities.

(3.) The learned Counsel for the appellant urged that under inherent powers of the Court under Section 151 of the Code of Civil Procedure, the Court can always allow revival of a suit which stands dismissed on account of its withdrawal by the plaintiff. Of course, it is not disputed that it should depend on the facts of each case whether the Court, or the Controller in the present case, should exercise such a power or not. There is no warrant for the proposition that the Court is powerless to restore a suit dismissed as withdrawn on the request of the plaintiff. The circumstances under which the eviction petition was withdrawn are sought to be explained that the Delhi Rent Control Act under which the eviction petition had been filed before the Controller was amended with effect from 1st December, 1988. The effect of the amendment was in cases where the rent of a premises was above Rs. 3,500 .00 per month, the Act had no application. It was in view of this bona fide understanding of the legal position that the Counsel for the petitioners/appellants made the statement before the Controller on 9th January, 1991, referred to hereinbefore. On 25th January, 1991, a Division Bench of this Court rendered a decision holding that the amendment of the Delhi Rent Control Act is prospective and does not affect pending proceedings which would continue to be governed by law existing before the amendment of the Act. Soon thereafter, the application for revocation of the order of dismissal of the suit as withdrawn was filed on 29th January, 1991 which was dismissed by the Controller. According to the learned Counsel for the appellants, their Counsel who withdrew the eviction petiton was under a bona fide belief about the legal position which led him to withdraw the eviction petition. It is further submitted that at the relevant time, there was serious controversy as to whether the amendment of the Act was prospective or it will apply to pending proceedings also. That is why the question was referred by a Single Judge of this Court to a Division Bench and ultimately the judgment of the Division Bench was pronounced holding that the amendment is prospective and will not affect the pending proceedings. In such facts, it was prayed that the appellants ought to have been allowed to have their eviction petition revived by revocation of the order of dismissal on account of withdrawal thereof. The learned Counsel has relied upon a Division Bench judgment of the Calcutta High Court in this behalf- Durgapada Jana v. Nernai Charon Jana, AIR 1986 Calcutta 23. It has been held in the said judgment that if through a mistake, the plaintiff had withdrawn the suit, the Court would not be powerless to set aside the order of dismissal of the suit and allow the withdrawal of the application for withdrawal of the suit in exercise of its inherent powers, provided there are some justifiable reasons. It was further held that scope of Section 151 is very wide, "Where there is no provision under the Code of Civil Procedure prescribing any remedy. Section 151 will apply. Order 23 Rule I provides withdrawal of a suit with or without liberty to file a fresh suit. There is no provision for getting an order passed on withdrawal application set aside or praying for withdrawal of an application for withdrawal of the suit. In such circumstances, in our opinion, the Court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power in a proper and a suitable case."