Jammu & Kashmir High Court – Srinagar Bench
Radhika Pruthi vs Cantonment Board on 3 January, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Th virtual mode)
Reserved on 29.11.2024
Pronounced on 03.01.2025
FAO No. 31/2024 c/w
CM(M) No. 142/2024
Radhika Pruthi .....Appellant(s)/Petitioner(s)
Through: Mr. Hakim Suhail Ishtiyaq, Adv.
vs
Cantonment Board, Badami Bagh, ..... Respondent(s)
th. its Chief Executive Officer
Through: Mr. Muzaffar Ahmad Dar, Adv.
Mr. T. M. Shamsi, DSGI with
Mr. Faizan Ahmad Ganie, CGSC
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
FAO No. 31/2024
1. 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
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FAO No. 31/2024
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
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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 application stood allowed, and that a detailed order
would follow. However, no subsequent hearing date was fixed in the main
case and despite multiple visits by the appellant’s counsel to the court’s civil
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section, the file remained with the Presiding Officer, and no formal order was
issued, and believing in good faith that the withdrawal application stands
allowed and considering the urgency to proceed with the construction, the
appellant herein filed a fresh suit on 12.07.2024 before the learned Principal
District Judge, Srinagar, which suit, later came to be transferred to the trial
court and included the necessary plea regarding her communication to the
Board and her reliance on the Deemed Permission clause. However, the
appellant herein did not mention the filing of the earlier suit, as no formal
withdrawal order had been issued by the concerned court till then.
8. It is further stated that the appellant herein did not add or delete any fact
except adding the pleading based on which the withdrawal of the earlier suit
was sought, while stating further that the appellant herein had no intention of
concoaking the factum of filing of the earlier suit and in absence of the order
of withdrawal and in view of the urgency in the matter, thought it proper in
the facts and circumstances of the case as also in the view of the legal advice
tendered in this regard.
9. The appellant has stated that she became aware of the pre-dated order passed
in the withdrawal application dated 29.06.2024 on 31st July 2024, when it
was uploaded on the e-Courts website and contends that if her intention had
been to mislead the Court, she would have allowed the earlier suit to remain
pending and let it be dismissed in default. However, acting in good faith, she,
appellant herein promptly filed a review petition before the court of Sub-
Judge/Judge Small Causes, Srinagar on 10.08.2024 and therein the said
review petition, notice was issued to the respondent 1 herein, who appeared
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and sought time to file objections and as on the date of filing the present
appeal, the respondent 1 has not submitted its objections. Thus, the appellant
herein asserts, demonstrates her bona fide conduct and lack of any intent to
deceive the court.
10. It is next stated that upon filing of the written statement by the respondent 1,
the trial court upon hearing the parties on 17.09.2024 reserved the
applications under Order 39 Rule 1 and 2 and Rule 4 of the CPC for orders
and vide the impugned order the application filed by the appellant was
dismissed with costs of Rs. 5,000/-.
11. The appellant herein has challenged the impugned order dated 05.10.2024 on
the following grounds:
(i) That the Ld. Trial Court has dismissed the interim application of the
Appellant without providing an opportunity to allow the Appellant to
explain the circumstances in which the two suits were filed. As stated
above, the withdrawal application was announced to have been allowed,
however, thereafter, for one month no detailed order was passed and
thereafter the application was dismissed. Paras 24 to 31 detail out the
circumstances which occurred and resulted in the filing of the two suits.
(ii) That Hon’ble Court of Sub-Judge/Judge Small Causes, Srinagar passed
the order dated 29.06.2024 on misconception of law. By virtue of order
dated 29.06.2024, the Appellant had sought withdrawal of the suit filed
by her even before the summon was served upon the defendant and he
had caused his appearance. Order 23 of the Code of Civil Procedure
governs the withdrawal of suit. It is a settled principle of law that
6FAO No. 31/2024
withdrawal of a suit is a unilateral act to be done by the plaintiff,
requires no permission or order of the Court and it not subject to any
condition, it becomes effective as soon as the application is filed. Even
no order allowing the withdrawal of the suit is required to be passed by
the Court. However, in cases where the plaintiff seeks liberty to file
fresh suit under Order 23 Rule 1(3) of the Code, that the Court is
required to pass an order either granting or refusing to grant the liberty.
The Court cannot refuse withdrawal of the suit and continue the
proceedings thereupon.
(iii) That in terms of the principle of dominus litus, once the application was
filed, the suit stood withdrawn and under the bona fide belief that the
application has been allowed, the Appellant filed the subsequent suit. It
had never been the intention of Appellant to mislead the Hon’ble Court.
(iv) That the Ld. Trial Court has passed the impugned order on the ground
since the Appellant had filed the first suit, abandoned the same and filed
the subsequent suit. The Ld. Trial Court has failed to appreciate the fact
that legal consequence of filing of a withdrawal application under Order
23 of the Code’, the fact that the Appellant immediately filed the review
petition and is prosecuting the same diligently, understanding the
consequence of the same on the subsequent suit.
(v) That the Ld. Trial Court without appreciating in its proper perspective
the circumstances and the steps taken by the respective counsels for the
Appellant to set the things right has made observations against the
counsels and attributed malice to them.
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(vi) That the Ld. Trial Court has failed to appreciate the law in its proper
perspective and has been influenced by the pendency of the first suit,
which in law, stood withdrawn on 29.06.2024 when the application for
withdrawal was filed. Mere continuation of the proceedings in a
withdrawn suit by the Hon’ble Court of Sub-Judge/Judge Small Causes,
Srinagar, against the principles of law, cannot be held against the
Appellant.
(vii) That the judgments relied upon by the Ld. Trial Court are
distinguishable on facts and are not applicable to the case at hand, as in
the said cases, the earlier suits/appeal had been disposed after
trial/contest and the factum of same were concealed in subsequently
filed writ petitions. In the present case, the Appellant had filed a suit,
withdrawn it and in anticipation of the detailed order, filed the
subsequent suit. Withdrawal of earlier suit would not bar filing of the
subsequent suit more so when the suit was for injunctive relief and
considering Section 22 of the Limitation Act.
(viii) That on merits, the Ld. Trial Court has observed that since the
application of the Appellant was rejected by the Respondent vide
communication dated 05.01.2023, therefore, provision of deemed
permission clause being Section 238(6) of the Cantonment Act does not
apply. With respect it is submitted that the Ld. Trial Court has failed to
appreciate the fact that the Appellant had specifically pleaded in the
plaint that she had applied for permission on 27.06.2022 and had placed
on record the undertaking and building plans filed along with the
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application, which fact has not been denied by the Respondent in its
written statement. Once the application remained unprocessed and right
of deemed permission crystallized, the returning of application after six
months is of no consequence.
12. When the matter was considered by this Court for admission on 16.10.2024,
the impugned order was stayed and the Defence Estates Officer, Badami
Bagh, Srinagar, who had filed an application seeking impleadment in the
second suit filed by the appellant herein and had filed a caveat viz-a-viz the
impugned order dated 16.10.2024 was impleaded as respondent 2 in this
appeal as also in the suit pending before the trial court.
13. Respondent 1 herein subsequently filed an application seeking vacation of the
order dated 16.10.2024.
14. In view of the urgency expressed by the counsels for the parties, the said
application was directed to be listed along with this appeal on 29.11.2024, on
which date the parties consented to the hearing of the appeal on merits.
Heard learned counsel for the parties and perused the record.
15. Besides reiterating the grounds urged in the appeal, the counsel for the
appellant herein has also urged that the trial court has made unnecessary out
of context and uncalled for remarks against the counsel appearing in the suit.
16. Before proceeding further in the matter, it would be significant to refer to the
maxim dominus litis, which means that the plaintiffs is the master of the suit.
It gives the plaintiff right to chose a forum, parties and the nature of the relief
sought, subject to be limitation of law. This principle is particularly relevant
in cases involving procedural issues, such as multiple suits or withdrawal and
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refilling of the suits. Once the appellant herein, being plaintiff in the court
below filed an application for withdrawal of the suit with liberty sought the
suit is deemed to have been withdrawn and the court is required to pass an
order to the extent whether liberty sought is to be granted or not and in case of
a withdrawal simplicitor, even if no order is passed by the concerned court,
the suit would stand withdrawn without there being any formal requirement of
passing an order under Order 23 CPC.
17. Since the review petition filed by the appellant herein is pending adjudication
before the court below and any observation on the same might prejudice the
outcome of the same, therefore, this Court at this stage would not enter into
this issue.
18. It is also a fact that in the second suit filed, the appellant herein had made the
changes, i.e. paragraph 16, as was pleaded in the application seeking
withdrawal of the first suit.
Para 16 of the first plaint is reproduced below:
“16. That once the application of the Plaintiff was not
rejected by the Defendant, the legal consequence in the
form of deemed permission as envisaged under Section
238(6) of the Cantonments Act, 2006 would ensue”
.
Para 16 of the second plaint is reproduced below:
“16. That once the application of the Plaintiff remained
unprocessed by the Defendant for more than a month, the
Plaintiff approached the Defendant and informed it about
her intention to start construction in view of the legal
consequences in the form of deemed permission as
envisaged under Section 238(6) of the Cantonments Act,
2006 ensue”.
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FAO No. 31/2024
19. It is evident from a plain reading of the aforesaid two paras in the two plaints
that the appellant herein in fact, did incorporate the plea which was taken in
the application for withdrawal of the first suit. Thus, it is not true that the
appellant herein filed the fresh suit which was a ditto copy of the first suit as
has been observed by the trial court at paragraph 11 of the impugned order. It
is also not forthcoming from the record as to how the trial court came to such
a conclusion when the plaint filed to institute the first suit was never placed
on its record by any of the parties; instead, the defendant respondent 1 herein
had placed on record the order dated 29.06.2024 dismissing the application
seeking withdrawal of the suit. Once the said plaint was not on record before
the trial court, how did it come to the conclusion of concealment of the
factum of filing of first suit was a material fact and thus fatal for the second
suit. Even after having concluded that the second suit was ditto copy of the
first suit, the trial court has neither dismissed the second suit nor stayed the
same in terms of Section 10 CPC instead has proceeded in the main suit after
passing of the impugned order. This manifestly shows that the trial court was
itself not sure as to whether the first suit was fatal to the second suit,
presumably so, because the entire record of the first suit was not available
before the trial court. The trial court seemingly has been influenced by mere
non-mentioning of the factum of filing of the first suit.
20. Perusal of the record reveals that the impugned order has been primarily
passed by the trial court on the ground of concealment of the factum of filing
and pendency of the first suit yet observations on the merit of the case have
been made and in paragraph 10 of the impugned order, the trial court has
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rendered a finding on merit that the case of the appellant herein, in view of the
subsequent returning of her application on 05.01.2023, did not fall within the
ambit of Section 238(6) of the Act and has towards the end of the same
paragraph observed that the plaintiff appellant herein had not served any
notice in terms of Section 238(6) of the Act. The said observation was made
in view of the denial of the defendant respondent 1 herein to have received
any such notice.
21. Besides, the pleas raised by the appellant herein in the plaint and the
consequent denial by the defendant respondent 1 herein raised triable issues
which could have been proved or disproved by the parties by leading
evidence. The trial court ought not to have ventured into deciding the merits
of the case at the stage of consideration of an application under Order 39
CPC. By making such observations, the trial court has virtually dismissed the
suit under the guise of dismissal of the application for interim relief and what
is left in the suit is nothing at all for determination.
22. It is significant to mention here that there is distinction between “mistake”
and “trickery”. What is forthcoming from the record, particularly in view of
the fact that the appellant herein did not abandon the first suit but is contesting
the review petition against the order dismissing the application for withdrawal
of the suit, it cannot be said that the appellant herein tricked the trial court into
entertaining the second suit, yet at the most it can said to be a mistake. Also,
the fact that the appellant herein had brought into the notice of the trial court
that review had been filed has not been denied by the counsel for the
respondents, however, there is no mention of the said review petition in the
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FAO No. 31/2024
impugned order and if the said review petition filed by the appellant herein is
found to have merit by the court before which the same as also the first suit is
pending, and the same is allowed, the same would have effect of withdrawal
of the suit w.e.f. the date of filing of the application i.e. 29.06.2024, i.e. before
the second suit was filed. In this context, a reference to the judgment of the
Apex Court passed in the case titled Arunima Baruah v. Union of India and
Others (2007) 6 SCC 120 would be profitable, wherein following has been
held:-
“12. It is trite law that so as to enable the court to refuse to exercise its
discretionary jurisdiction suppression must be of material fact. What
would be a material fact, suppression whereof would disentitle the
appellant to obtain a discretionary relief, would depend upon the facts
and circumstances of each case. Material fact would mean material for
the purpose of determination of the lis, the logical corollary whereof
would be that whether the same was material for grant or denial of the
relief. If the fact suppressed is not material for determination of the lis
between the parties, the court may not refuse to exercise its
discretionary jurisdiction. It is also trite that a person invoking the
discretionary jurisdiction of the court cannot be allowed to approach it
with a pair of dirty hands. But even if the said dirt is removed and the
hands become clean, whether the relief would still be denied is the
question.”
23. It is pertinent to mention herein that it is settled law that concealment of a
material fact might be fatal to a suit and 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 the
statement made in the written statement. In the instant case, there is not a
single observation worth the name in the impugned order to show how the
trial court concluded that the first suit was a concealment of a material fact in
the facts and circumstances of the case. Mere stating that concealment was a
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concealment of a material fact would not absolve the trial court of its duty the
law has put on it, more so in view of the consequences of such an
observation.
24. The trial court ought not to have dealt with the application seeking interim
relief in the manner it has dealt with it by dismissing the same with costs,
besides making unnecessary and uncalled allegations of deceit against the
conduct of the counsels. A perusal of the details about the filing of the two
suits online would show that both the suits have been filed by the same
advocate. The Trial Court seems to have been swayed away by the factum of
filing of two suits.
This Court thus, feels that the Appellant has demonstrated bona fide conduct
by acting transparently and promptly when discovering the order in the first
suit by taking remedial action against the same. Had there been an intent to
mislead the Court, the Appellant could have let the earlier suit lapse without
pursuing its withdrawal or review. Failure to mention the earlier suit does not
seem to be deliberate, but stemmed from the absence of a formal withdrawal
order at the time the second suit was filed.
25. For what has been observed, considered and analyzed hereinabove, the instant
appeal succeeds.
26. Resultantly the impugned order dated 05.10.2024 is set aside.
CM No. 6677/2024
Mr. Salih Peerzada, Adv. for the applicant
Mr. Hakim Suhail, Adv. for non-applicant
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During the pendency of the instant appeal, an application bearing CM No.
(6677/2024) was filed by one Reapan Tickoo, son of Late Shiban Krishan,
seeking impleadment as a Respondent in the appeal. The applicant, currently
residing in Mumbai, sought to be included in the appeal. Notice was issued to the
appellant herein on 04.11.2024, and the matter was scheduled for hearing on
25.11.2024. On the scheduled date, the counsel for the applicant informed the
Court that the applicant had already filed a petition (CM(M) No. 142/2024) and
sought its adjudication alongside the present appeal.
Upon reviewing the record of CM(M) No. 142/2024, it became evident that the
petition pertains to a suit filed by the applicant herein against the respondent-
Board seeking a restraining order to prevent interference with the construction he
is raising under the deemed permission clause of Section 238(6) of the
Cantonments Act, 2006. The interim application filed by the applicant in the suit
filed by him has been dismissed by the court of Sub-Judge/Judge Small Causes,
Srinagar vide order dated 05.10.2024, which has been thrown challenge to by the
appellant herein in CM(M) No. 142/2024 (supra).
This Court finds that the applicant herein has no right or interest that would be
affected by the decision in the appeal supra. This is especially true as the
applicant is neither a party to the suit filed by the appellant herein pending before
the trial court nor has he sought impleadment in it. Being merely a neighbor to
the appellant herein does not provide the applicant with any legitimate interest or
prejudice resulting from the outcome of the appeal. Without showing any specific
legal interest or how the outcome would adversely affect him, the applicant
cannot be allowed to seek impleadment.
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Accordingly, the application is dismissed.
Petition being CM(M) No. 142/2024 to be segregated and list accordingly.
(JAVED IQBAL WANI)
JUDGE
Jammu
03.01.2025
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Rakesh Kumar
2025.01.07 15:46
I attest to the accuracy and
integrity of this document