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TMI Blog2008 (2) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... d will make the payment of balance amount. (3) That Party No. 1 assured to Party No. 2 that regarding the rights of ownership and transfer of the house there is no dispute and if need arises then party No. 1 will get permission from the Court and Party No. 2 will have the right that on the error of party No. 1 will get registry executed through court and the expenses will have to be borne by party No. 1. Therefore, this agreement wrote down and received Rs. 24,000/-(Rupees twenty four thousand). The map of residential house prepared and will remain with this document. The boundaries are wrote down under : North : House Sambhajirao Angre. West : Property of Sambhajirao Angre East : Road South : House Hariram Kapoor" 2. A suit for specific performance was filed on 9.9.1986 which was marked as O.S. No. 228A/1986. Proper court fees were not paid thereupon. Having regard to an objection taken in that behalf by the first respondent herein in his written statement, allegedly another suit was filed by her on 23.3.1987, which was marked as O.S. No. 13A of 1987. O.S. No. 228A of 1986, on the premise that another suit has been filed, was sought to be withdrawn. The application for wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the appellant in regard to payment of proper court fee. We, therefore, are of opinion that Order 23 Rule 1 of the Code was not applicable to the facts and circumstances of the present case. 8. A somewhat similar question came up for consideration in Mangi Lal Vs. Radha Mohan [1930 Lahore 599(2), wherein it was held; "Order 23, Rule 1, refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order 23, Rule 1, cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suits". 9. The said view was followed by the Karnataka High Court in P.A. Muhammed Vs. The Canara Bank and Another [AIR (1992) Kar. 85]. 10. An identical view was also taken in Girdhari Lal Bansal Vs. The Chairman, Bhakra Beas Management Board, Chandigarh and Others [AIR 1985 Punj and Har 219] wherein it was held; "4. .. The earlier application was filed on 6th Oct, 1982 and the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust show that the plaintiff has withdrawn the suit or part of the claim. However, if either from the application of the plaintiff or from the order permitting withdrawal, it transpires that while permitting withdrawal, the court had also granted liberty to institute fresh suit, the subsequent suit would be barred. Thus, in a case, the Delhi High Court held that the words 'without prejudice to the right of plaintiff' endorsed on the application for withdrawal would only mean that the suit was sought to be withdrawn as compromised and not on merits. An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the court was that 'The application is, therefore, allowed while permitting the plaintiff to withdraw the suit'. It was held that this should be construed as an order also granting liberty, as prayed. The court cannot split the prayer made by the applicant." 14. For the reasons aforementioned, we are of the opinion that the High Court was not correct in applying the provisions contained in Order XXIII Rule 1 of the Code of Civil Procedure in the facts and circumstances of the case. 15. It is no doubt true that ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of machinery where the contractual intention is clear but the contract is silent on some detail. Thus in contracts for future performance over a period the parties may not be able nor may they desire to specify many matters of detail, but leave them to be adjusted in the working out of the contract." 18. There is no dispute with regard to the aforementioned legal proposition. However, we have not been called upon to construe an agreement entered into by and between two businessmen. The maxim, Certum est quod certum reddi potest instead of being of any assistance to the appellant, runs counter to her submission. It means that is certain which can be made certain. In relation to 'uncertainty' it is stated : "The office of the habendum is a deed is to limit, explain, or qualify the words in the premises; but if the words of the habendum are manifestly contradictory and repugnant to those in the premises, they must be disregarded. A deed shall be void if it be totally uncertain ; but if the King's grant refers to another thing which is certain, it is sufficient; as, if he grant to a city all liberties which London has, without saying what liberties London has. An agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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