UMESH PRASAD RAI GROCERY Vs. STATE OF ASSAM
LAWS(GAU)-2018-3-53
HIGH COURT OF GAUHATI
Decided on March 29,2018

Umesh Prasad Rai Grocery Appellant
VERSUS
STATE OF ASSAM Respondents

JUDGEMENT

A.K.GOSWAMI - (1.) Heard Mr. K. Singha, learned counsel for the petitioner. Also heard Mr. D.P. Bora, learned standing counsel, Health and Family Welfare Department appearing for the respondent Nos. 1, 2 and 3.
(2.) By this petition filed under Article 226 of the Constitution of India, the petitioner prays for a direction to the respondent Nos. 1, 2 and 3 to cancel the technical bid of the respondent Nos. 4 and 5 submitted in response to e-tender notice dated 26.9.2017 and to cancel the work order, if any, issued in their favour and to issue work order in favour of the petitioner. A further prayer for setting aside the summary tender report dated 11.11.2017 so far as it relates to the respondent Nos. 4 and 5 is also made.
(3.) The petitioner had earlier approached this Court by filing an application under Article 226 of the Constitution of India registered as WP (C) No.773/2018. The said writ petition was dismissed on withdrawal by the following order dated 16.2.2018: "On the prayer of Mr. A. Paul, learned counsel for the petitioner, this writ petition is allowed to be withdrawn. I have also heard Ms M. Bhattacharjee, learned Additional Senior Government Advocate, Assam. The writ petition stands dismissed on withdrawal." Mr. Sinha has made available copy of the writ petition filed in WP(C) 773/2018 for perusal of the Court. In the said writ petition, the petitioner prayed for a declaration of the bids of the respondent Nos. 4 and 5 as evaluated by the evaluation committee as illegal and ulrtra virus and to float fresh tender or to re-evaluate the technical bids again. Essentially and fundamentally, the prayers made in both the writ petitions are same as the core challenge is regarding acceptance of technical bids of the respondent Nos. 4 and 5. Order 23 Rule 1 CPC, which is on the subject of withdrawal and adjustment of suit, reads as under: "1. Withdrawal of suit or abandonment of part of claim- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim. (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 subrule (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. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under subrule (3), any suit or part of a claim, without the consent of the other plaintiffs." ;


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