Final Order 1

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IN THE COURT OF :COURT 04 AD-HOC ASST SESSIONS JUDGE
Case No. :CHAMBER SUMMONS/0101930/2019
Mrs. Kasturben Amarchand Chhadva Vs 1.The Metro Developers Company 2.The MCGM 3.The
Assistant Municipal Commissioner M West Ward
Date : 08-08-2022
Business : Adv. Sherekar for plaintiff present. None for deft. No. 1.
Adv. Mrs. Tondwalkar for defendant Nos. 2 and 3/ BMC is
present. K.B. L.O. Same appearance. Following order is
passed on Exh.7- O R D E R 1. Plaintiff filed application for
permission to withdraw of suit with liberty to file a fresh
suit for alternate accommodation and or compensation. It is
contended that defendant No.2/ corporation by letter dated
30/01/2021 withdrawn a notice issued u/S 314 of the
M.M.C. Act. Therefore, plaintiff want to withdraw the suit
with liberty to file fresh suit. 2. The defendant No.1 strongly
opposed application for filing reply. It is contended that this
defendant has filed Ch/S No. 1930/2019 for dismissal of the
suit and present application for withdrawal of suit has been
filed after thought. The plaintiff is not entitled to withdraw
the suit with liberty to file fresh suit because plaintiff
suppressed from this Court that they have filed another suit
No. 872/2019 challenging the notice u/S 314 issued by the
corporation as such plaintiff is cannot be permitted to
withdraw the suit as prayed. The defendant has completed
the development and handed over possession of new shop to
the plaintiffs. The notice u/S 314 has been withdrawn,
hence, no cause of action survives against defendant No.1.
3. Defendant/corporation submitted that unconditional
withdraw of the suit may be granted. 4. Heard learned
counsel for the parties. 5. Adv. for defendant No.1 submitted
that the plaintiff cannot be permitted to withdraw the suit
unless he satisfy the Court that he has shows sufficient
ground for permission to withdraw the suit as contemplated
under order 23 rule (1) (3) of the C.P.C. In support of
submission he relied on judgment of Hon&amp#039ble
Allahabad High Court in Abdul Gafur v/s Abdul Rehman in
which it is held that the plaintiff has to show sufficient
ground to withdraw the suit with liberty to file fresh suit. He
further relied on judgment of Hon&amp#039ble
Allahabad High Court in Baldevdas v/s Joshi Gauri Datt in
which he held that Court has jurisdiction to grant permission
to withdraw the suit with liberty to file fresh suit only if
there is a formal defect or a defect of an analogous character
as a result of which the suit is bound to fail. He also relied
on judgment of Hon&amp#039ble Himachal Pradesh
High Court in Promila Bakshi and Ors. v/s Ashok Bhatia
and Ors. In which it is held that if the suit neither suffered
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from any formal defect nor was any fresh ground made out
to withdraw the suit with liberty to file fresh suit, it can not
be withdrawn conditionally. 6. The plaintiffs are seeking
permission to withdraw the suit with permission to file fresh
suit for relief of alternate accommodation and or
compensation. It is contended by the plaintiffs that the
corporation has withdrawn notice u/s 314 of M.M.C. Act.
The present suit has been filed for mandatory injunction, in
respect of the shop No.5 situated near fire brigade, chembur
naka on CTS No.457 and 458. Order 23 rule (1), clause of
CPC contemplates that where the Court is satisfied that (a) a
suit must fail by reason formal defect or (b) that there are
sufficient grounds for allowing plaintiff to institute fresh
suit for subject matter of the suit or part of the claim. The
Court can grant liberty to withdraw suit conditionally. In the
case in hand plaintiff is seeking permission to withdraw the
suit on ground that corporation has withdraw notice u/S 314
of M.M.C. Act. The plaintiff is withdrawing suit
conditionally with liberty to file fresh suit for relief of
compensation and or alternate accommodation. The plaintiff
is not seeking permission to file fresh suit for same relief. It
is well settled that if the relief claimed in the subsequent suit
is not same as the relief claimed in the first suit, the second
suit cannot be said to be in respect of same subject matter.
Therefore, I find no substance in the objection raised by the
defendant No.1. I gone through the judgments relied by the
defendant No.1. The facts of the case in hand and judgments
relied by defendant No.1 are not identical. Therefore, the
judgments relied by defendant No.1 are not applicable to
this case. The plaintiff has shown sufficient reason for
withdrawal of this suit. Therefore, in view of discussion
above made, application for withdrawal of suit with liberty
to file fresh suit for alternate accommodation and or
compensation deserves to be allowed as prayed, hence I
passed following order- O R D E R 1. Application below
Exh.7 is allowed as prayed. 2. L.C. Suit No. 1772/2016 is
disposed of as withdrawn. 3. The parties to bear their own
costs. 4. In view of withdrawal of suit, Ch/S No. 1930/2019
stands disposed of.
Nature of Disposal : WITHDRAWL
Disposal Date : 08-08-2022
COURT 04 AD-HOC ASST SESSIONS JUDGE
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