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2020 (9) TMI 684
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....titioner, wherein the said petitioner claimed the bid for itself, and for rejecting the bid of the appellant herein as well as the successful bidder, M/s.Krystal Integrated Services Private Limited, fourth respondent herein. Both the writ petitions were taken up together and have been dismissed. While dismissing the writ petitions, the learned Single Judge has made the following observations in paragraphs (40) to (42), which are reproduced herein under: "40. The reasons and the law laid down by the Hon'ble Supreme Court are binding. I hold that both the Writ Petitioners have embarked on a speculative journey to deliberately frustrate further progress in the tender process. Both the Writ Petitions have to suffer an order of dismissal and accordingly they are dismissed. 41. It must also be stated that the learned counsel for the Writ petitioner in W.P.No.24412 of 2019, made the following endorsement in the Writ Petition on the last day when the writ petitions were reserved for orders: 'Petitioner may be permitted to withdraw with liberty' This Court expresses its deep displeasure over such an endorsement made by the learned counsel for the petitioner. It exhibits ....
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....fied that the other writ petitioner had been contesting his writ petition and there was no endorsement by the said writ petitioner for withdrawing the case. He also points out that this matter had been heard at length before another learned Single Judge, where written arguments had been filed on 04.10.2019 and inspite of the matter having been heard and judgment reserved by the learned Single Judge, the same was not pronounced, as a result thereof, the matter came to be heard by another learned Single Judge, who has now dismissed the writ petition with the said observations. 7. The contention is that there was no attempt on the part of the appellant to put the Court to any form of inconvenience or seek adjournment or any unnecessary indulgence, and he was simply pursuing his legitimate and bona fide right to seek a judicial review from this Court in a contractual matter to the extent it may have been permissible. 8. In this background, once the petitioner had sought withdrawal and had endorsed it, then, the dismissal of the writ petition and imposition of cost without putting the appellant's counsel to notice on this ground, is not justified, more so, in the back ground of ....
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....ion shall not preclude the Sixth Respondent from deciding the aforesaid application for advance ruling said to have been made by the Petitioner. 5. Learned Counsel for the parties seek time to make further submissions in the Writ Petition. Post the matter along with W.P. No. 27267 of 2019 on 22.11.2019 at the end of the list." 7. The contention of the learned counsel for the appellant is that it is for this reason that the appellant made a request before the learned Single Judge to allow the appellant to withdraw his writ petition, for which an endorsement was made so that he may have the liberty to pursue the appeal before the Advance Ruling Authority. 8. The contention of the learned counsel for the appellant is that the endorsement made for withdrawal of the writ petition was unequivocal, as the appellant did not wish to contest the writ petition since he was pursuing his application before the Advance Ruling Authority, the Court ought to have simply dismissed the writ petition and there was no justification for having imposed costs. 9. It is submitted that since the Advance Ruling Authority had failed to decide the application in spite of the said observation made by the l....
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.... Daryao v. State of U.P. [AIR 1961 SC 1457 : (1962) 1 SCR 574] is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fres....
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.... seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition.' In para 9 of the said decision, it is also mentioned as follows: (SCC p. 12) '9. ... But we are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in Bench-hunting tactics.' (emphasis supplied) We are of the opinion that the decision in Sarguja Transport case [(1987) 1 SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC 88] has to be understood in the light of the observations in paras 8 and 9 therein, which have been quoted above. The said decision was given on the basis of public policy that, if while hearing the first writ petition the Bench is inclined to dismiss it, and the learned counsel withdraws the petition so that he could file a second writ petition before what he ....
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....acts may make a lot of difference in the precedential value of a decision.' (emphasis supplied) 17. As held in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani [(2004) 8 SCC 579 : AIR 2004 SC 4778] a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed: (SCC pp. 584-85, paras 9-12) '9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [19....
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....ea is to keep the path to justice clear of obstructions which could impede it.' " (emphasis supplied) 18. We have referred to the aforesaid decisions and the principles laid down therein, because often decisions are cited for a proposition without reading the entire decision and the reasoning contained therein. In our opinion, the decision of this Court in Sarguja Transport case [(1987) 1 SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC 88] cannot be treated as a Euclid's formula. 16. In the said decision, the Court held that the application for withdrawal of the first writ petition had been made bona fide, as the company was trying to bring about an amicable settlement. The assumption of any forum shopping does not arise in this case, as the pursuit of an application before the Advance Ruling Authority is a separate remedy, which may or may not have a bearing on the claim of the appellant in the present proceedings, but the writ petition was filed with regard to an award of tender, the forum of which was before the learned Single Judge. This is not a case where the appellant had withdrawn any earlier claim with regard to the tender process to institute a fresh proceeding. We may fu....
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....ctify any mischief or fraud or even correction of legally permissible mistakes. Thus, the right of a litigant may be absolute for withdrawing from a litigation but it is hedged with the aforesaid limitation and, therefore, can be said to be subject to any orders passed or adjudication before the withdrawal is treated to be absolute. The intention, therefore, expressed to withdraw from a Suit may require me passing of an order of the Court before finality is attached to the same. ..... 30. The contention raised that Order 21, Rule 89(2) has similar wordings and the order of the Court is not necessary, is not attracted, as the ingredients of Order XXIII are entirely different as discussed hereinabove. A litigant can surrender his right to contest a matter which is the essence of Order XXIII. The right to withdraw such an intention of surrender or revoke the same which can arise in the circumstances as discussed hereinabove is a different issue. These ingredients, therefore, in relation to the entire disclaimer of the claim is not comparable with the provisions of Order 21, Rule 89(2) in a matter arising out of execution. 31. There is yet another aspect which requires consider....
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....m 24,: AIR 2003 Bom 238, followed the judgment of this Court in Shiv Prasad v. Durga Prasad, (1975) 1 SCC 405 and held that the said judgment is applicable to suits also. The High Court recognised the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would be complete as soon as the plaintiff files his purshis of withdrawal. 18. Order 23 Rule 1(1) CPC enables the plaintiff to abandon his suit or abandon a part of his claim against all or any of the defendants. Order 23 Rule 1(3) CPC requires the satisfaction of the Court for withdrawal of the suit by the plaintiff in case he is seeking liberty to institute a fresh suit. While observing that the word abandonment in Order 23 Rule 1(1) CPC is "absolute withdrawal" which is different from the withdrawal after taking permission of the court, this Court held as follows K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458] , SCC pp. 463-64, para 12: '12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts: (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be....
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....sed, that too even with the imposition of Rs. 5 Lakhs costs and refusing permission to withdraw the writ petition and liberty to pursue his application before the Advance Ruling Authority. 22. On the said issue, we find that the learned Single Judge in order to draw a curtain on the litigation at that stage had already been offered an opportunity to dismiss the writ petition as withdrawn. In our view, once such a request has been made, and unless there are any unrepresented third party rights that may be affected, or any of the contingencies mentioned in the judgments referred to herein above exist, it is always ordinarily an acceptable position that the Court should not proceed to adjudicate the matter and permit withdrawal on such conditions that may be necessary. 23. In the instant case, we find no party unrepresented in the litigation being affected by the appellant seeking liberty to pursue his application before the Advance Ruling Authority. To this extent, the fourth respondent cannot have any objection, in as much as he has no locus to question the moving of an application by the appellant before the Advance Ruling Authority and pursuing the same, which application admitt....