1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO.1325 OF 2009 M/s. R.& R. Associates ] A Partnership firm registered ] under the Indian Partnership ] Act through their Partner, ] Shri Dhirubhai Zatakia, ] Appellant Aged: 42 years, Occ.: Landlord, ] An Indian Inhabitant of Mumbai, ] Residing at 2, Alka,Tilak Road, ] Ghatkopar (E),Mumbai – 400 077 ] vs. Shri Rusi Daruwala, ] a tenant of a Flat on 2nd floor, ] Tehmi Villa, 798, Jam-e-Jamshed Road, ] Respondent Parsi Colony, Dadar (E), ] Mumbai – 400 014. ] Mr.D.D. Madon, Senior Counsel with Mr. J.P Sen, i/by Ms.Gauri Godse, Advocate for appellant. Mr.M.M. Bagadia, Advocate for respondent. Coram : Smt.R.P. SondurBaldota, J. Judgment : 9th December 2009 reserved on Judgment : 25th January 2010. pronounced on ORAL JUDGMENT : 1. Considering the short question involved in the appeal, it was taken up for final hearing at the stage of admission itself. Notice before admission, issued on 14th September, 2009 had been ordered accordingly. 2 2. The appellant had filed S.C. Suit No.4643 of 2002 in the Bombay City Civil and Sessions Court at Mumbai against the respondent for a declaration that the respondent has no right to bring his car and the scooter of his son in the compound of the building known as “Tehmi Villa” and/or to wash the vehicles or carryout repair or to put up monsoon shed without permission of the appellant and without following due process of law. It also sought a permanent injunction to restrain the respondent from doing any such act. The respondent filed written statement taking up a preliminary objection to the suit contending that the same is barred by Section 12 read with Order XXIII, Rule 1 Sub Rules 3 & 4 of the Code of Civil Procedure and hence not maintainable. The Bombay City Civil Court, therefore, framed the following issue, which was heard as a preliminary issue. “Whether suit is maintainable in view of withdrawal of R.A.E. Suit No.341/581 of 2002”. By order dated 24th July, 2009, which is impugned in this appeal, the issue was answered in the negative and the plaint was rejected under Order VII Rule 11 of C.P.C. The suit was accordingly disposed of. 3. The R.A.E. Suit No.341/581 of 2002 had been earlier filed by the appellant in the Court of Small Causes, Mumbai for eviction of the respondent from tenanted premises and for a declaration that the respondent has trespassed in the compound of the building by parking his vehicles therein. In his defence to the suit, the respondent questioned jurisdiction of the Small Causes Court in granting relief of declaration. The appellant then conceded to the legal position as regards maintenability of the suit for declaration in the Small Causes Court and sought to withdraw the suit on 26th July 2002. The Small Causes Court allowed the appellant to withdraw the suit on payment of 3 costs to the respondent. Thereafter the appellant filed S.C. Suit No. 4643 of 2002 restricting itself to the relief of declaration and injunction. According to the respondent, this suit is barred under Order 23, Rule 1, Sub rule 3 and 4 C.P.C. because no liberty had been granted to it to file fresh suit on the same cause of action when it had withdrawn the first suit. 4. The learned Judge held in the impugned order that undisputedly subject matter of the two suits i.e. the first suit filed in the Small Causes Court and the second suit filed in the City Civil Court was same. Plain reading of the order passed by the learned Judge of Small Causes Court speaks only of withdrawal of the suit but it is silent about the permission being granted to file the fresh suit. Therefore, according to the learned Judge, the only interpretation that was possible was that there was no permission to file the fresh suit. Hence, the second suit would be barred under Section 12 C.P.C. read with Order 23, Rule, 1, Sub rule 3 and 4. 5. The challenge of the appellant to the impugned order is threefold. It is firstly contended that no leave was required to be obtained to institute the second suit, as the subject matter of the second suit is not entirely the same as the cause of action in the first suit. The liberty was also not required because the Court of Small Causes Court did not have jurisdiction to grant relief of declaration in respect of parking of vehicles by the respondent. The second contention is that once there was an application filed for withdrawal of the suit, with liberty to file fresh suit for the same cause of action, the court of Small Causes could not have simplicitor allowed withdrawal of the suit by separating the prayer from permission to file fresh suit. Therefore, the order is required to be read along with the application on which it was passed and held that the order has the effect of granting permission to the plaintiff to file fresh 4 suit on the same cause of action. It has thirdly been contended that the respondent having raised an objection to the jurisdiction of Small Causes Court to grant reliefs in the first suit is estopped from contesting the maintenability of the second suit. 6. Mr.Madon, the learned Senior Counsel appearing for the appellant submits that leave under Order 23, Rule 1(3) was in fact not required as subject matter of the two suits cannot be said to be entirely same. He submits that the leave under Order 23, Rule 1(3) is needed only when a plaintiff desires to file a fresh suit on the same cause of action by withdrawing the earlier suit. He points out that by the earlier suit, the appellant had sought two prayers. The first prayer was for eviction of the respondent on termination of the tenancy in respect of the demised premises and the second prayer related to unauthorised use by him of space in the compound of the building of Tehmi Villa for parking vehicles and the other ancillary use. The second suit filed is limited to the relief relating to unauthorised use of the portion in the compound of the building. Mr. Bagadia, the learned counsel for the respondent submits per contra that one fails to understand how merely because the appellant omits one relief from the second suit and rewords the other relief, it can be said that subject matter of the two suits is dissimilar. 7. The relief sought in the earlier suit and the averments in the plaint in support thereof read as follows : R.A.E. Suit No.341/581/2002 Prayer clause (b) : That it be declared that the Defendant by parking his car and his sons's scooter in the compound of the suit building is committing trespass. Paragraph (6) : 5 The plaintiffs submit that open space on the ground floor in the compound of the said building cannot be said to be appurtenant to the leased flat on the second floor as to constitute “premises” within Section 16(1)(a) of the Maharashtra Rent Control Act, 1999. Hence, the Defendant cannot claim any statutory right u/s 16(1)(a) to park his car or his son's scooter in the compound of the said building. B.C.S.C. Suit No.4643/2002 Reliefs (a) and (b) : (a) It be declared by this Hon'ble Court the defendants have no right, and/or interest and/or claim of any nature of whatsoever bring his car bearing No.BMU-2291 and also scooter of son No.MH-01/E-9055 and/or any other vehicles/ scooter in the plaintiff compound known as Tehmi Villa, 798, Jame-e-Jamshed Road, Parsi Colony, Dadar (East), Mumbai – 14, and/or to wash the vehicles and/or to carry out the repairs and/or to pout up any monsoon sheds without the permission of the plaintiff and the aforesaid compound the building without following in due process of law; (b) That this Hon'ble Court will be pleased to grant injunction into against the defendants, his family members, servants, agents and/or any other persons acting under the directions of the defendants to park the car no.BMU/2291 and the scooter and to carry out any repairs of the said vehicles and/or wash the vehicles and/or construct the monsoon shed in the compounds of the plaintiff property and/or to obstruct in any manners, the plaintiff and their staff members 6 whereby restraining from using the said compound of ground floor of the said building known as Tehmi Villa, 2nd Floor, Tehmi Village, 798, Jame-E-Jamshed Road, Parsi Colony, Dadar (E), Mumbai – 400 014. The averments in support of the above prayers are made at paragraphs 4,5,6,7 and 9 of the plaint. It is alleged therein that the respondent is not granted any right of parking the vehicles in the compound nor right of tenancy or any other right created in his favour for parking the vehicles. Despite this position, the respondent and his son bring their vehicles inside the compound and forcibly park the same there. They also wash the vehicles in the compound making the compound dirty. The dirty water mixed with oil stagnating the compound is unhygienic and prone to breeding of mosquitoes. The respondent is also not permitted to put a monsoon shed in the compound. Thus the act of the respondent parking the vehicles in the compound causes damage and waste to the property of the appellant. 8. Perusal of the prayers in the suit quoted above and the averments made in the respective plaints to support the reliefs leaves no doubt in the mind that the subject matter in the two suits is same. Omission of the relief seeking eviction of the respondent from the tenanted premises would make no difference whatsoever for considering the question of the similarity of causes of action in the two suits, therefore, that will have to be ignored. The relief as regards the parking of vehicles in the compound of the building has been merely reworded, probably with change in the advocate appearing for the appellant. However,the cause of action essentially remains the same, which is objection of the appellant to parking of vehicles by the respondent in the compound of the building on the ground that the same is unauthorised. Therefore, the contention of the appellant that 7 the causes of action in the two suits are dissimilar cannot be accepted. 9. It is next contended by Mr.Madon that since the Court of Small Causes, admittedly did not have jurisdiction to grant the relief of declaration in respect of parking of the vehicles in the earlier suit, there was no need for the appellant to obtain leave of that Court while withdrawing the earlier suit and to file fresh suit on that cause of action. He further submits that the respondent, having once questioned jurisdiction of the Court of Small Causes, it is not open to him to challenge the jurisdiction of the Bombay City Civil Court, as he cannot be allowed to approbate and reprobate the same transaction. In this connection, he relies upon the decision of our High Court in the case of Mario Shaw vs. Martin Fernandez and another, reported in AIR 1996 Bombay Page 116. The facts of the decision cited are that the respondents in that case had, on expiry of leave and license agreement, approached the Co-operative Court for possession of the premises from the petitioner. The petitioner challenged the maintenability of the dispute on the ground that the Co-operative Court had no jurisdiction to try it. Then the respondent withdrew the dispute from the Co-operative Court and filed proceedings before the competent authority under part 2(a) of Bombay Rents Hotel and Lodging House Rents Control Act, 1957. The petitioner once again raised the question of jurisdiction. On these facts, our High Court held that a man cannot both affirm and disaffirm the same transaction, show its true nature for his own relief and insist on its apparent character to prejudice his adversary. In other words, it is not permissible for the petitioner to approbate and reprobate at the same time. Once having questioned, the jurisdiction of the Co- operative Court, it was not open for the petitioner to say that the dispute before the Co-operative Court was maintenable and therefore the present proceedings which are instituted without the leave of Co- operative Court are not maintenable. Mr.Bagadia submits in reply that it 8 is not the contention of the respondent that the Court of Small Causes has jurisdiction in respect of the subject matter of the second suit. The objection of the respondent is limited to the non compliance of Order 23, Rule 1, Sub Rule 2 and 3 C.P.C. Therefore, there is no question of the respondent approbating and reprobating the same transaction. 10. On plain reading of the provision of Order 23, Rule 1, Sub rule 2 and 3 shows that it relates to withdrawal of the suit or abandonment of part of the plaint not on the question of the jurisdiction of the Court. It relates to suits that are very much within the inherent jurisdiction of the Court to try but are likely to fail by reason of some formal defect in the suit. An objection to the jurisdiction of the Court will not come in the category of a formal defect. Formal defect would be a defect of form prescribed by some rules or procedure or defects of various kinds not affecting merits of the suit e.g. a suit filed by unregistered partnership firm or a suit filed without giving prior notice statutorily required to be given, improper valuation and insufficiency of Court fee etc. or other sufficient ground to allow the plaintiff to institute a fresh suit for the subject matter of a suit or part of the plaint. In these circumstances, there was no need for the appellant to seek leave of the Court under Order 23, Rule 1 (3) CPC to file a fresh suit on the same cause of action. Had the appellant desired to file a fresh suit for eviction of the respondent, which relief was within the jurisdiction of the Court of Small Causes, leave under Order 23, Rule 1, Sub Rule 2 and 3 would have been required. Mr.Bagadia submits that considering the fact that the second suit filed by the appellant is limited to the parking of the vehicles in the compound, correct course of action to be adopted by the appellant was to abandon the first relief in the earlier suit and apply for return of the plaint for presentation to the proper Court. The appellant could not withdraw the suit filed in the Court which had no jurisdiction and file a fresh suit in the Court having jurisdiction. I find substance in 9 the submission of Mr.Bagadia, because if a Court has no jurisdiction to entertain suit, it must either return the plaint for presentation to the proper court or dismiss the suit depending upon the nature of the bar of jurisdiction. While doing so, it may grant or extend interim protection to the plaintiff. It cannot pass any other order. In the instant case the Court while considering the application for withdrawal ought to have passed an order as suggested by Mr.Bagadia. But the question is whether on this ground, the subsequent suit should be dismissed. Since the court did not have jurisdiction to entertain the suit and since by the order passed by the Court of Small Causes, the suit of the appellant is finally removed from the file of the court, the order permitting withdrawal will have to be treated as the order of dismissal of the suit. In the above circumstance, it must be held that leave under Order 23, Rule 1, Sub Rule (3) C.P.C. was not required to be obtained by the appellant as the Court of Small Causes had no jurisdiction to entertain earlier suit in terms of prayer clause (b). 11. The second contention of the appellant is that once there is an application filed for withdrawal of the suit with liberty to file fresh suit for the same cause of action, the Court is required to consider the application in its entirety and it cannot pass an order simply of withdrawal of the suit and not pass an order on the prayer for permission to file the fresh suit. In this connection, Mr.Madon relies upon decision of Madras High Court, in Rajasundari w/o Sivaramakrishnan vs. Gowri alias Avaduai Ammal & Ors., reported in A.I.R.2006, page 156. It has been held by Madras High Court, while considering challenge to the order passed by the subordinate court on such an application, that an application to withdraw the suit with liberty to file a fresh suit must either be allowed or refused in toto. It is not open to the Court to grant prayer for withdrawal and to refuse the leave. If the leave is refused, the suit could not be dismissed, but must be 10 retained in file for continuation of trial. It is patent from the language of Order 23, Rule 1(3) CPC itself that the application under Order 23, Rule 1(3) CPC is indivisible, hence there can be no dispute with the preposition advanced. 12. Mr.Bagadia, however, submits that the decision cannot be apply to the facts of the present case. Firstly because the order as passed by the Court of Small Causes has been accepted by the appellant since he has not challenged the same. The above preposition could have been a good ground to challenge the order. Besides, he submits that the application before the Court of Small Causes was simplicitor for withdrawal of the suit and it was not an application under Order 23, Rule 1(3) C.P.C. for withdrawal of the suit with permission to file a fresh suit. He submits that there was no formal application filed by the appellant for withdrawal of the suit under Order 23, Rule 1(3), but the application was hand written on the plaint on on 26th July 2002 in following words : “The Plaintiff want to withdraw the Suit for want of jurisdiction as matter involved in the Suit is of parking of vehicles and therefore Plaintiffs may be allowed to withdraw the Suit to file before the competent Court of Law.” This application does not seek liberty of the Court to file fresh suit on the same cause of action. It seeks to withdraw the suit and the reason for withdrawal stated in the application is lack of jurisdiction and desire of the appellant to file suit before the competent Court of law. Mr.Madon on the other hand submits that the appellant had filed affidavit dated 19th July 2002 for the purpose and produces its copy. According to Mr.Bagadia, this affidavit has not been served upon the respondent at any point of time. There is no evidence of service of the affidavit produced before the Court. This disputed affidavit does not 11 make mention of the provision under which the same was filed. It merely states that the plaintiff wants to withdraw the suit against the defendant in respect of the suit flat and the reason stated in the affidavit for withdrawal of the suit was that the plaintiff wanted to file a suit in respect of illegal parking of the vehicles in the compound and for such a suit, the Bombay City Civil Court would have jurisdiction. The prayer at paragraph 3 of the affidavit is for liberty to withdraw the suit because the appellant wanted to file a suit in respect of illegal parking of the vehicles for which City Civil Court would have jurisdiction. It is thus seen that even in the affidavit, there is no prayer for leave to file fresh suit, the leave sought is only for withdrawal. Reading both, the application written on the plaint and the affidavit dated 19th July 2002, it is seen that the application therein is only for simplicitor withdrawal of the suit giving reasons for the withdrawal. The prayer for leave to file a fresh suit on the same cause of action probably could have been read into the application without the same being specifically made if the application were to mention the provision under which the same was being made. Unless there is some clue found in the application for the purpose, it would be difficult to read in any additional prayer into the same. One must remember that these are not mofusil pleadings and also parties to the proceedings are not some poor or illiterate persons. Therefore, I am inclined to accept the submission of Mr.Bagadia that the application filed by the appellant did not contain prayer for leave for filing of the fresh suit and hence no fault can be found with the order of the Court of Small Causes. 13. As regards the last contention, there can be no estoppal from contesting maintenabililty of the second suit merely on the ground of raising an objection to the maintenability of the earlier suit on the ground of jurisdiction because in a given case , there could be such a ground available to a party. The party however cannot be allowed to contend 12 that the earlier court had jurisdiction to entertain the suit. That would amount to approbating and reprobating the same transaction. It is already seen above the such is not the position in the instant case. 14. The appellant succeeds in the appeal since in the facts of the case, there is no bar to the filing of the second suit on account of withdrawal of the first suit. The appeal is allowed. The order dated 24th July 2009 passed by learned City Civil Court, Bombay in Suit No.4643 of 2002 is set aside. The issue quoted at paragraph 2 is answered in the affirmative. (Smt.R.P. SondurBaldota, J.)