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SMT. SUMITA MARWAH vs MR. VIKAS VIJ & ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 141/2024 & C.M.No.59667/2024
SMT. SUMITA MARWAH …..Appellant
Through: Mr.Devashish Marwah with
Ms.Aneesha Rastogi, Advocates.
versus
MR. VIKAS VIJ & ORS. …..Respondents
Through: Ms.Jaspreet Kaur, Advocate for R-3
& 4.
% Date of Decision: 09th October, 2024
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, CJ : (ORAL)

1. Present appeal has been filed challenging the order dated 05th August,
2024 passed by the learned Single Judge in CS(OS) No.185/2024 whereby
the learned Single Judge rejected the objections filed by the Appellant herein
under Order XXIII, Rule 1 (3) and (4) CPC with respect to maintainability
of the subject suit.
2. Learned counsel for the Appellant states that the subject suit was
preferred by the Respondent nos. 1 and 2/Plaintiffs for declaration of title
and possession of one shop (out of four shops) on the ground floor with
basement, which forms part of a two and a half stories building located at
plot no. 83, Block-P, Gali No.19/20, situated at Naiwala Estate, Beadon
Pura, Karol Bagh, New Delhi (“subject property”).

3. He states that the Appellant is the sole owner of the subject property
with the title vested in her since 2006 and she has been in continuous
physical possession of the property since 2006.
4. He states that on 29th July, 2021, Respondent nos.1 and 2/ Plaintiffs
filed a suit bearing no. CS (SCJ)1628/2021 before the Tis Hazari Courts,
Central District, Delhi (“Suit-2021”) inter alia seeking a decree of
declaration of title and possession in favour the Respondent nos.1 and 2 for
the subject property involving the same parties as in the subject suit.
5. He states that Respondent nos.1 and 2 filed a second application
seeking amendment of Suit-2021 (the first application was dismissed as
withdrawn) pursuant to the liberty granted by this Court vide order dated
19th April, 2023 passed in CM(M) No. 622/2023.
6. He states that after arguments were heard on the second amendment
application on 21st November, 2023, Respondent nos.1 and 2 orally
withdrew the Suit-2021 on 10th January, 2024.
7. He states that on 2nd March, 2024, Respondents nos.1 and 2 filed the
subject suit with the same cause of action, same parties and claiming reliefs
with respect to the same subject property as in Suit-2021.
8. He submits that the learned Single Judge erred in holding that every
withdrawal of a suit allowed by a Court of law is always with liberty to file
the same afresh, while also dispensing with the requirement of filing an
application under Order XXIII, Rule 1(3) CPC. He states that no leave was
granted to Respondent nos.1 and 2 to file the subject suit after they had
simply withdrawn the Suit-2021 on 10th January, 2024.
9. He emphasizes that the learned Single Judge failed to take into
consideration that the prayers in the subject suit are barred by limitation.

10. Having heard learned counsel for the Appellant and having perused
the paper book, this Court finds that Respondent no.2 made a statement
dated 10th January, 2024 before the Trial Court seeking permission to
withdraw the suit with liberty to file a fresh suit and in pursuance of this
statement (which was recorded separately), the Trial Court allowed
Respondent nos.1 and 2 to withdraw the suit-2021.
11. In our opinion, the order dated 10th January, 2024 granted liberty to
Respondent nos.1 and 2/Plaintiffs to file a fresh suit. In fact, the order dated
10th January, 2024 passed in CS (SCJ) 1628/2021 vide which permission
was granted to Respondent nos.1 and 2 has not been challenged by the
Appellant and has thus attained finality.
12. The law is well settled that if permission has been sought for
withdrawal of the suit seeking liberty to file a fresh suit and the Court has
passed an order permitting the plaintiff to withdraw the suit, such an order
has to be construed as an order granting liberty as prayed for. The Court
cannot split the prayer made by the party.
13. As far as the plea of limitation is concerned, this Court is of the view
that the Appellant is at liberty to raise the same during the trial.
14. Accordingly, the present appeal being bereft of merit is dismissed
along with the application.

CHIEF JUSTICE
TUSHAR RAO GEDELA, J
OCTOBER 09, 2024
KA