Legal Action against Encroachment
Query: There is an encroachment in front of my house. My father has filed a case against it in lower court. But it is taking too late. Can i file a writ petition in high court as a petitioner against government authorities to remove it.
Your case may be hit by the legal concept of sub judice. Under Section 10 of the Code of Civil Procedure, no Court can proceed with a suit in which the matter in issue is also directly and substantially in issue in a previously instituted pending suit between the same parties and under the same title. Thus, if the writ petition is going to have the same issue and the same parties as the ongoing civil case filed by your father, then it will be rejected on the above ground. The same was held in several judgements, such as the 1996 Swetambar Sthanakwasi Judgment of the Supreme Court and a very recent Madras High Court judgement.
One of the options we looked at was withdrawing your ongoing suit, (done under Order XXIII Rule 3 of the Code of Civil Procedure), and then filing a writ petition before the High Court on this issue. But the problem with this is that the Court has to let you file a fresh suit on the same subject matter again. If the Court decides not to let you do that, then you will lose the possibility of winning the civil case, since it has been withdrawn, and you won't be able to file another case on this again.
The grounds on which the Court allows you this option, is not fixed, and is open to interpretation. The Act says the Court can choose to allow if:
a. The suit had formal defects, or
b. That there are "sufficient grounds " for allowing the plaintiff to institute a fresh suit.
The "sufficient grounds" are not defined or fixed. The Madras High Court held that “sufficient grounds” are: evidence being not available for no fault of the plaintiff, the suit being pre-matured and the cause of action growing pending the suit, the plaintiff has failed to put in evidence an important document and where the plaintiff had been mislead by the absence of a specific denial by the defendant; while the Karnataka High Court kept the definition open for interpretation, saying “sufficient grounds" should not be limited to the grounds afforded by the defects which are analogous to formal defects referred to in clause (a).
Moreover, the Supreme Court has also held that this rule of CPC can be extended to writ petitions also, on the ground of public policy, to discourage the litigant from indulging in bench-hunting tactics.
Thus, you should discuss these points with your lawyer, and take a look at this option. If you are positive about being able to convince the Court to allow you to withdraw with the permission to file a fresh suit, then you can go ahead with this option.
No sir you cannot approach the High court directly in such matters, as your father has already filed just go through the case papers and expediate the matter.
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