Withdrawal with liberty and jurisdiction challenge defeated the Order 23 Rule 1 bar, preserving fresh proceedings.

Section 31H of the Bombay Rent, Hotel and Lodging Houses Rates Control Act did not bar the proceedings because it applies only to matters pending in other courts on the date the 1986 amending Act commenced, and the earlier dispute had been filed later. The bar under Order 23 Rule 1 CPC also did not apply because a party that had challenged the jurisdiction of the earlier forum could not later rely on that proceeding to invoke the withdrawal bar, and a request for withdrawal with liberty to file fresh proceedings should not be defeated by granting only unconditional withdrawal. The challenge to the possession order was therefore rejected.

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Issues: (i) whether Section 31H of the Bombay Rent, Hotel and Lodging Houses Rates Control Act, 1947 barred the proceedings; (ii) whether withdrawal of the earlier dispute without express liberty to file fresh proceedings attracted the bar under Order 23 Rule 1 of the Code of Civil Procedure, 1908.

Issue (i): whether Section 31H of the Bombay Rent, Hotel and Lodging Houses Rates Control Act, 1947 barred the proceedings.

Analysis: Section 31H applies to proceedings pending in other courts on the date of commencement of the amending Act of 1986. The earlier dispute had been filed after the amending Act came into force, so the statutory condition for invoking Section 31H was absent.

Conclusion: Section 31H did not bar the proceedings.

Issue (ii): whether withdrawal of the earlier dispute without express liberty to file fresh proceedings attracted the bar under Order 23 Rule 1 of the Code of Civil Procedure, 1908.

Analysis: A party that has challenged the jurisdiction of the earlier forum cannot later treat that proceeding as maintainable for the purpose of invoking the bar under Order 23 Rule 1. In addition, where withdrawal was sought with liberty to institute fresh proceedings, the court was not justified in granting only unconditional withdrawal and thereby defeating the right to pursue a fresh remedy.

Conclusion: The bar under Order 23 Rule 1 did not apply.

Final Conclusion: The revision petition failed on both grounds and the challenge to the order directing delivery of possession was rejected.

Ratio Decidendi: A party that has questioned the jurisdiction of the earlier proceeding cannot invoke the bar of withdrawal without liberty under Order 23 Rule 1, and a court dealing with an for withdrawal with liberty should not grant only unconditional withdrawal if that would unfairly foreclose a fresh proceeding.

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