Smti. T Amudha v. Shri R Manoharan
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/65/2025 Smti. T. Amudha Vs Shri R. Manoharan Mr. Gopala Binnu Kumar ... for the petitioner Mr. K. M. B. Jayapal ... for the opposite party no. 1 Mr. Anish Badaik ... for the opposite party no. 2 December 09, 2025 [SR] Item No.10 This application under Article 227 of the Constitution of India is at the instance of the 4th defendant and is directed against an order dated March 12, 2024 passed by the learned Joint Civil Judge (Senior Division), South Andaman District in Title Suit No. 239 of 2019.
By the order impugned, the order dated 11.01.2023 was recalled.
Mr. Gopala Binnu Kumar, learned Advocate appearing for the petitioner submits that the Title Suit No. 239 of 2019 was withdrawn by the plaintiff/opposite party No. 1 herein which is recorded in the order dated 11.01.2023. He further submits that subsequently the opposite party No. 1 filed an application under Section 151 of the Code of Civil Procedure praying for recalling of the order dated 11.01.2023. He submits that such application was allowed thereby recalling
the order dated 11.01.2023 without serving any notice upon the petitioner.
Mr. Jayapal, learned Advocate appearing for the opposite party No. 1 submits that the suit was withdrawn on a mistaken belief that the earlier suit being Title Suit No. 156 of 2018 which was renumbered as Title Suit No. 38 of 2019 was still pending at the relevant point of time. He further submits that immediately after coming to know that the earlier suit being Title Suit No. 38 of 2019 was dismissed for default, the instant application under Section 151 of the Code of Civil Procedure was filed praying for recalling the order withdrawing the suit.
However, on query of the Court, Mr. Jayapal, learned advocate appearing for the opposite party No. 1 submits that the copy of the application under Section 151 of the Code of Civil Procedure was not served upon the defendants. Order XXIII Rule 4 sub-rule (b) of the Code of Civil Procedure states that where the plaintiff withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded for instituting any fresh suit in respect of such subject matter or such part of the claim.
Thus, an order permitting withdrawal of a suit without seeking liberty to sue afresh necessarily implies that the
plaintiff shall be precluded from instituting any fresh suit in respect of the subject matter of such suit.
Thus, a right accrued in favour of the defendants when the plaintiff withdrew the earlier suit without seeking any liberty to sue afresh.
To the mind of this Court, no order for recall of an order permitting withdrawal of suit simpliciter, could have been passed without giving an opportunity to the defendants to contest such application. Since admittedly the order of the withdrawal of the suit was recalled without serving any copy of the application upon the defendants, this Court is inclined to interfere with such order in exercise of powers under Article 227 of the Constitution of India. For all the reasons as aforesaid, the impugned order is set aside. The application under Section 151 of the Code of Civil Procedure filed by the opposite party No. 1 praying for recalling of the order dated 11.01.2023 stands restored to the file of the learned Joint Civil Judge (Senior Division), Port Blair.
The opposite party No. 1 shall serve a copy of the said application under Section 151 of the Code of Civil Procedure upon the defendants and the learned Trial Judge shall hear out the said application afresh after giving an opportunity to the defendants to file written objection and pass an order on the application after giving an opportunity of hearing to the respective parties.
CO/65/2025 stands disposed of with the aforesaid observations and directions.
It is however made clear that this Court has not gone into the issue of maintainability of the application under Section 151 of the Code of Civil Procedure and the learned Trial Judge shall be free to decide such issue if an objection with regard to the maintainability of the said application is raised by the defendant.
( Hiranmay Bhattacharyya, J. )