Judgment:
Civil Revision No.2451 of 2013 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2451 of 2013 (O&M) Date of Decision:- 28.1.2014 Jatinder Singh ......Petitioner Versus Punjab State Ware Housing Corporation .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Ajay Pal Singh Rehan, Advocate for the petitioner. Mr.Vikas Singh, Advocate for the respondent. MEHINDER SINGH SULLAR, J.
(Oral) The matrix of the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that, petitioner-defendant Jatinder Singh s/o Gurcharan Singh (for brevity “the defendant”.) was posted and working as a District Manager in the office of respondent-plaintiff Punjab State Ware Housing Corporation (for short “the plaintiff-Corporation”.) at Gurdaspur, at the relevant time. The defendant, with the connivance of other employees, has misappropriated 23671 bags (each 50 Kgs.) of wheat and has caused a huge financial loss of ` 1,11,84,547/- to plaintiff-Corporation. Consequently, it has instituted the civil suit (Annexure P2) for recovery of ` 35,20,012.30 P against the defendant.
2. Sequelly, the defendant contested the suit, filed the written statement (Annexure P6), stoutly denied all the allegations contained in the plaint and prayed for dismissal of the suit. Arvind Kumar Sharma 2014.01.30 11:35 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2451 of 2013 (O&M) 2 3. During the pendency of the suit, the plaintiff-Corporation filed an application for withdrawal of the suit, with permission to file a fresh suit under Order 23 Rule 1 CPC. The trial Court accepted the application and permitted it to withdraw its suit with permission to file afresh one on the same cause of action, by way of impugned order dated 28.2.2013 (Annexure P1).
4. Aggrieved thereby, the petitioner-defendant has preferred the present petition, invoking the superintendence jurisdiction of this Court under Article 227 of the Constitution of India.
5. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant petition in this context.
6. Ex facie, the argument of learned counsel for petitioner that there was no technical defect and since no ground for withdrawal of the suit was made out, so, the trial Court committed a legal mistake to permit the plaintiff-Corporation to withdraw its suit with liberty to file a fresh suit, is neither tenable nor the observations of this Court in case Bansi Lal Clarance v. United Church of Northern India Trust Asse. Regd. Office, Bombay 1995 (1) PLR139 Delhi High Court in case Kamal Kumar Jain & Ors. v. Raj Kumari Jain & Ors. 2007(5) RCR (Civil) 469 and Andhra Pradesh High Court in case Somalraju Chinnammi v. Samanthu Sivaji Ganesh and another 2009 AIR (A.P.) 12, are at all applicable to the facts of the present case, wherein, it was observed that the provisions of Order 23 Rule 1 CPC are applicable only where the Court is satisfied that there are such formal defects in the suit which may result in dismissal of it. Such provisions can Arvind Kumar Sharma 2014.01.30 11:35 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2451 of 2013 (O&M) 3 also be used to meet the ends of justice. However, the same cannot be used where the plaintiff fails to prosecute his suit diligently despite opportunity. Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of petitioner-defendant in the instant controversy for the reasons mentioned here-in-below.
7. As is evident from the record that after the enquiry, the defendant was dismissed from service by plaintiff-Corporation, vide order dated 5.2.2007 (Annexure P3) on account of misappropriation of the wheat. The defendant had challenged the pointed order of his dismissal in Civil Writ Petition, bearing No.10225 of 2008, decided on 7.10.2009 (Annexure P4), in which, the dismissal order was directed to be withdrawn by this Court. However, plaintiff-Corporation reserved its right to award any punishment to the defendant. Thereafter, he (defendant) sent his representation dated 7.10.2009. He was personally heard and after hearing him, the Managing Director of plaintiff-Corporation passed a fresh punishment order dated 9.3.2010 for the recovery of the amount in question. It is not a matter of dispute that initially, the plaintiff-Corporation filed the suit when the earlier punishment order dated 5.2.2007 was in existence, which stands already withdrawn and now fresh punishment order dated 9.3.2010 was passed by the competent authority.
8. Therefore, once the initial punishment order was withdrawn in the indicated writ petition, in view of order passed by this Court, then, the suit (Annexure P2) was bound to fail on technical ground because no punishment order, on the basis of which the suit was filed, was in existence. Fresh cause of action has only arisen to plaintiff-Corporation when the subsequent punishment order dated 9.3.2010 was passed after hearing the Arvind Kumar Sharma 2014.01.30 11:35 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.2451 of 2013 (O&M) 4 defendant. Thus, the trial Court has correctly granted permission to plaintiff-Corporation to withdraw its suit with permission to file a fresh suit on the same cause of action, as contemplated under Order 23 Rule 1 CPC, by virtue of impugned order (Annexure P1).
9. Meaning thereby, the trial Court has examined the matter in the right perspective and has recorded the cogent grounds in this respect. Such order, containing valid reasons, cannot legally be set aside, in exercise of superintendence jurisdiction of this Court under Article 227 of the Constitution of India, unless & until, the same is perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioner-defendant, so, the impugned order (Annexure P1) deserves to be and is hereby maintained in the obtaining circumstances of the case.
10. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
11. In the light of aforesaid reasons , as there is no merit, therefore, the instant petition filed by the petitioner-defendant is hereby dismissed as such. Sd/- (Mehinder Singh Sullar) 28.1.2014 Judge AS Whether to be referred to reporter ?. Yes/No Arvind Kumar Sharma 2014.01.30 11:35 I attest to the accuracy and integrity of this document Chandigarh