TMI Blog2020 (9) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... t withdrawal on such conditions that may be necessary. 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 admittedly was not disposed of due to the pendency of the writ petition itself. There are no valid reason for imposing costs on the appellant - appellant, therefore, had a right to withdraw the writ petition and having exercised that right, there was no legal impediment in granting permission to the appellant to withdraw the writ petition. The writ petition stands dismissed as withdrawn - Appeal allowed. - W.A.No.711 of 2020 - - - Dated:- 9-9-2020 - Mr. A. P. Sahi, Chief Justice And Mr. Justice Senthilkumar Ramamoorthy For the Appellant : Mr.Nithyaesh Natraj For the Respondent : Mr.Shivakumar, Mr.Karthikeyi Balan, Mr.Mohammed Saffiq Spl. Government Pleader, Mr.Mohammed Saffiq Spl. Government Pleader ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertained the appeal, we had passed the following order on 27.7.2020, while issuing notice: We have heard learned counsel for the petitioner Mr.Shivakumar, learned counsel appearing for the first respondent; Mr.P. Vinod Kumar, learned counsel for the fourth respondent and Mr.V.Jayaprakash Narayanan, learned State Government Pleader for the State and its authorities. 2. Issue Notice to the unserved respondents returnable at an early date. 3. Learned counsel may also take private notice to the unserved respondents and a copy of the papers be circulated to all the learned counsels. 4. Learned counsel for the appellant has urged that this appeal is limited in its scope questioning the correctness of the observations, directions and imposition of cost as contained in paragraph Nos.41 and 42 of the impugned judgment dated 28.02.2020. Learned counsel submits that the petitioner had instructed the counsel to withdraw the writ petition with liberty, as an application before the Advance Ruling Authority was pending which was also one of the alternative remedies available in respect of the dispute that has been raised in the writ petition. 5. It is the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax in respect of the information required for the tender before the Advance Ruling Authority. It is in this context that the relief for setting aside the tender proceedings was prayed for in the writ petition. 6. Noticing the aforesaid fact, the learned Single Judge while hearing the writ petition giving rise to this appeal, on 14.11.2019, had passed the following order: Heard Mr. AR.L. Sundaresan, Learned Senior Counsel appearing for the Petitioner, Mr. V.M. Shivakumar appearing for the First Respondent, Mr. Vijay Narayan, Learned Advocate General assisted by Mr. R. Venkatesh, Learned Government Advocate appearing for the Second Respondent, Mr. M. Santhanaraman, Learned Counsel appearing for the Third Respondent, Mr. D. Ravichander, Learned Counsel appearing for the Fourth Respondent and Mr. M. Hariharan, Learned Additional Government Pleader appearing for the Fifth Respondent and perused the materials placed on record, apart from the pleadings of the parties. 2. Notice to the Sixth Respondent returnable by 22.11.2019. Private notice is also permitted. 3. Learned Senior Counsel appearing for the Petitioner submits that the Petitioner had made an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf has volunteered to withdraw his writ petition, is not justified and the Court ought not to have proceeded to decide the matter on merits, nonetheless the appellant is only contesting the observations made with regard to the right of withdrawal and the imposition of costs in the present appeal. 11. Learned counsel for the parties have been heard and Mr.Shivakumar, learned counsel for the first respondent submits that since the appeal is limited only to these aspects and is confined to the writ petition of the appellant, the Court may pass appropriate orders. 12. Mr.Karthikeyi Balan and Mr.Mohammed Saffiq, learned counsel have been heard on behalf of the State, and Mr.P.Vinod Kumar, learned counsel for the fourth respondent contends that it was on account of the conduct of the appellant that the Court proceeded to refuse withdrawal as well any liberty of any kind and rightly imposed the cost, as a frivolous litigation was being pursued by the appellant. 13. The aforesaid dispute has to be viewed in the light of the principles of Order XXIII Rule 1 of the Civil Procedure Code. At the outset, we may clarify that such principles relating to withdrawal are applicable to writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on open. The aforesaid view in Sarguja Transport Service (supra) has been reiterated in the case of Upadhyay Co. v. State of U.P. and others, (1999) 1 SCC 81 . Another shade of the said issue has been considered in the case of Kandapazha Nadar and others v. Chitraganiammal and others, (2007) 7 SCC 65 . Further, the limitation on the right of a defendant to object to a withdrawal has been discussed in the case of Anil Kumar Singh v. Vijay Pal Singh and others, (2018) 12 SCC 584 . 14. We may further point out that it is subject to the conditions as enunciated in the case of Radha Krishna v. State of Rajasthan, AIR 1977 Raj 131 , and subject to the powers of the Court circumscribed to the extent as contained in Sub-Rule (4) of Order XXIII Rule 1 of the Civil Procedure Code. 15. There are certain exceptions to this Rule which should also be taken into consideration, namely, that the petition filed is a bona fide attempt and not a mala fide attempt to consume the time of the Court by way of forum shopping. While explaining the judgment in the case of Sarguja Transport Service (supra), the Apex Court in the case of Sarva Shramik Sanghatana (KV) v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which was sought to be discouraged by the decision in Sarguja Transport case [(1987) 1 SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC 88] . 14. On the subject of precedents Lord Halsbury, L.C., said in Quinn v. Leathem [1901 AC 495 : (1900-1903) All ER Rep 1 (HL)] : (All ER p. 7 G-I) Before discussing Allen v. Flood [1898 AC 1 : (1895-1899) All ER Rep 52 (HL)] and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before-that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. (em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HL)] Lord Reid said, Lord Atkin's speech is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. (All ER p. 297g) Megarry, J. in Shepherd Homes Ltd. v. Sandham (No.2) [(1971) 1 WLR 1062 : (1971) 2 All ER 1267] , observed: (All ER p. 1274d) One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament; And, in British Railways Board v. Herrington [1972 AC 877 : (1972) 2 WLR 537 : (1972) 1 All ER 749 (HL)] Lord Morris said: (All ER p. 761c) There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 12. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT [AIR 1962 SC 680] , AIR p. 688 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a claim in the light of the word abandon used in Order XXIII of the Civil Procedure Code came to be considered by a learned Single Judge of the Allahabad High Court in the case of Bhajan Lal and others v. Rajmala, 2013 (2) ALJ 476 , where in paragraphs (23), (24), (30) and (31), the following observations have been made: 23. This provision was amended with the word abandon appearing in the Section which was previously a little different from the present context. To abandon means to relinquish or give up one's claim. It is a sort of renunciation and unless taken to be otherwise, a voluntary resignation or disowning of a claim. It is at times in the interest of another and it seeks to repudiate one's rights. A person casts off his vow to continue doing something and is a formal declaration thereof. The person abandoning a claim is voluntarily surrendering or sacrificing his claim. It is a disclaimer or forsaking of a right. The action taken is sought to be retracted from and is, therefore, an absolute unconditional withdrawal of one's right to pursue any further claim. 24. The provision of Order XXIII is, however, hedged with limitations on this rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right to contest or seek a judicial remedy partakes the nature of the basic structure of the Constitution. It is controlled by law made by the Parliament and the right to seek a judicial remedy, therefore, cannot be denied to a litigant. Similarly, the remedy already sought can be abandoned which is also permitted by law. In my opinion, before an order is passed by a Court formally terminating the litigation, this right to revoke a withdrawal can also be exercised and to this extent, the power of the Court is preserved in order to do complete justice between the parties. The reason is that a voluntary termination of a litigation has drastic consequences. It is severing one's hands for all times to come. To avoid any injustice, the right of a litigant to change the intent should be saved to conserve any possible lawful claim, till an order terminating the litigation is formally passed by the Court. This would in no way prejudice any right of the defendant, and the damage if any, can be rectified by the Court while passing the formal order. The procedure, therefore, would enure to the benefit of both parties. The Court should, however, at the very outset, if such an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such liberty being granted by the court enables the plaintiff to avoid the bar in Order 2 Rule 2 and Section 11 CPC.' 19. In the present case, in our opinion, the appellant was seeking judicial review on the principles of administrative law, and the present proceedings in relation to an award of tender, which may have been on erroneous grounds or otherwise, with which we are not concerned, but the fact remains that at the intermediate stage of the proceedings before the learned Single Judge, the order dated 14.11.2019 does take notice of the pendency of an application before the Advance Ruling Authority and it was left open to the said authority to decide the said application, which was not being decided by the Advance Ruling Authority and was kept pending till the matter was finally heard. 20. Mr.Saffiq, learned counsel has clearly submitted that normally in such matters when a writ petition or any other such proceeding is pending before the High Court, the Advance Ruling Authority awaits the disposal thereof and, therefore, the Advance Ruling Authority had not proceeded to dispose of the matter. It is thus clear that in spite of the observation of the Court on 14.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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