JUDGMENT
Dalveer Bhandari, J.
1. This appeal is directed against the order dated
17.11.1981 passed in Suit No. 29-A of 1977 by the
learned Single Judge. The appellant, M/s Kishan Chand
Surendra Kumar moved a petition under Section 20 of the
Arbitration Act in which it is incorporated that the
respondent gave the contract of development of its land
measuring 666 bighas and 17 biswas situated in
Karkardooma, Shahdara, Delhi for the purpose of a
residential colony. A cheque for Rs. 50,000/- was
given to the appellant, but it was dishonoured.
Subsequently the respondent paid two cheques of Rs.
5,000/- each to the appellant.
2. On 19.11.1967 the appellant learnt that the
respondent had entered into arrangement for development
of the same land with another contractor. Under these
circumstances the appellant alleged that the respondent
had committed breach of agreement dated 18.5.1967 and
asserted that the agreement contained an arbitration
clause. Under these circumstances the appellant moved a
petition under Section 20 of the Arbitration Act for
getting the disputes referred to an arbitration.
3. The respondent, the Delhi School Teachers
Cooperative House Building Society denied the existence
of any agreement with the appellant.
4. Another significant feature of this case is that
the petition under Section 20 of the Arbitration was
withdrawn by the appellant by moving an application
under Order 23, Rule 1 read with Section 151 of Code of
Civil Procedure. The respondent had also signed the
application. The Court dismissed the petition as
withdrawn on 17.10.1968. No permission was, however,
sought for filing a fresh petition on the same subject
matter.
5. The appellant submitted that what impelled him
to withdraw the petition was that an oral agreement was
entered into between the parties and according to which
the respondent agreed to pay damages to the tune of Rs.
78,000/- or allot the work as already agreed to under
the agreement dated 18.5.1967. The appellant further
claimed that he had executed some more work and
submitted three bills to the extent of Rs. 78,000/- to
the respondent. The appellant was paid Rs. 28,000/-
under both the agreement. The balance, however, was not
paid.
6. A petition under Section 20 of the Arbitration
Act was moved for reference of disputes between the
parties under both the agreements dated 18.5.1967 and
17.10.1968 to the Arbitrator. The respondent, however,
denied existence of both the agreements and also pleaded
that the petition is not maintainable as barred by time
and did not disclose any cause of action. The Court
framed issues on 24.1.1978 and partly recorded the
evidence.
7. The respondent moved an application that since
the issues were legal and went to the root of the
matter, therefore, these issues be tried as preliminary
issues.
8. The learned Single Judge after perusing the
entire documents on record and hearing the learned
counsel for the parties observed that Order 23 Rule 1(4)
C.P.C. envisages that where a plaintiff abandons any
suit or withdraws a suit or part of a claim without
obtaining permission from the Court to institute a fresh
suit in respect of the same subject-matter or part of a
claim, he shall be precluded from instituting a fresh
suit in respect of them. Section 141 of the CPC
provides that the procedure provided in regard to suits
shall be followed, as far as it can be made applicable,
in all proceedings in any Court of Civil jurisdiction.
The Court also observed that Section 20 of the
Arbitration Act itself requires the registration of any
petition under it as a suit. This petition was also
registered as Suit No. 29-A of 1977.
9. It may be pertinent to mention that in the
present case the appellant had withdrawn the petition
under Section 20 of the Arbitration Act without
obtaining permission from the Court to file a fresh one.
The learned Single Judge observed that in this case when
the appellant shyed away and abandoned his case on the
very existence of the main agreement as well as the
arbitration clause by withdrawing that petition, he is
precluded now to assert that they in fact existed.
Order 23, Rule 1(4) prevents him from doing so.
Order 23, Rule 1(4) of CPC reads as under:-
“(4) Where the plaintiff-
(a) abandons any suit or part of claim
under Sub-rule (1), or
(b) withdraws from a suit or part of a claim
without the permission referred to in
Sub-rule (3),
he shall be liable for such costs as the
Court may award and shall be precluded from
instituting any fresh suit in respect of
such subject-matter or such part of the
claim.”
10. According to the aforesaid provision of law the
conclusions arrived at by the learned Single Judge are
in consonance with the provisions of law. Their
Lordships of the Supreme Court in Hulas Rai Baij
Nath v. Firm K.B. Dass and Co. that “The language of Order 23, Rule 1,
Sub-rule (1) C.P.C., gives an unqualified right to a
plaintiff to withdraw from a suit and if no permission
to file a fresh suit is sought under Sub-rule (2) of
that Rule, the plaintiff becomes liable for such costs
as the Court may award and becomes precluded from
instituting any fresh suit in respect of that
subject-matter under Sub-rule (3) of that Rule.”
11. Regarding the submission of the appellant
pertaining to oral agreement of 17.10.1968, the learned
Single Judge observed that the said agreement provided
for payment of Rs. 78,000/- to him. The damages were
specifically quantified and nothing remains for the
Arbitrator to adjudicate. The appellant had only to
seek recovery of that amount and he can always take
appropriate steps to recover the same according to law.
12. The learned Single Judge observed that the
petition was barred by time. The petition was filed on
3.1.1977 on the basis of oral agreement dated 17.10.1968
and the last payment was stated to have been made on
30.12.1973. The Court further observed that it was not
shown that any payment was made within three years of
17.10.1968 to constitute as part payment for extension
of limitation under Section 19 of the Limitation Act.
Learned Single Judge correctly interpreted the
provisions of law and arrived at the correct conclusion
that the petition was manifestly barred by time.
13. The learned Single Judge dismissed the petition
and upheld all the three preliminary objections raised
by the respondent.
14. We have carefully examined the impugned
judgment. In our considered opinion, the learned Single
Judge’s findings on all three preliminary objections are
based on correct interpretation of the provisions of
law.
15. No interference is called for. The appeal is
accordingly dismissed. The parties are directed to bear
their own costs.