Amrik Singh vs Pritam Singh and others

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court dated January 5, 1982, whereby Pritam Singh, plaintiff-respondent, was allowed to withdraw his suit with permission to file afresh suit on the same cause of action on payment of Rs. 100/- as costs.

The plaintiff filed the suit for declaration and mandatory injunction on the 17th February, 1975. The said suit was still pending when the application for amendment of the plaint under Order VI rule 17, Code of Civil Procedure, (hereinafter called the code), was filed on behalf of the plaintiff wherein it was prayed that he be allowed to amend the plaint as to claim the relief regarding possession of the property as detailed in paragraph 4 of the head-note of the plaint which could not be claimed earlier through inadvertence. That application was allowed by the trial Court vide order dated December 16, 1981, on payment of Rs-400/- as costs. On January 5, 1982, the counsel for the plaintiff made a statement to the effect that there were formal defecis in the suit, the plaintiff was to seek the possession of the property and that the suit was likely to fail due to formal defects, therefore, he be allowed to withdraw his suit with permission to file a fresh suit on the same cause of action. On the said date, the counsel for Beant Singh, defendant, also made a statement to the effect that the defendant had got no objection to the widhdrawal of the suit. The trial Court found that there were formal defects in the suit. The plaintiff should have filed a suit for possession whereas the present suit was for declaration, and, therefore, it allowed the suit to be withdrawn with permission to file a fresh suit on. the same cause of action on payment of Rs. 100/- as costs. Dissatisfied with the same, Amrik Singh, defendant has. filed this revision petition

The learned counsel for the petitioner contended that the suit remained pending in the trial Court for more than six years. The plaintiff was allowed even to amend his plaint as to seek the relief of possession vide order of the trial Court dated December 16, 1981. Under the circumstances, there was absolutely no occasion for the trial court to allow the plaintiff to withdraw his suit with permission to file a fresh suit on the same cause of action. The learned counsel further contended that no application under order XXIII rule 1 of the Code was filed as to point out the alleged formal defect in the suit. Thus, argued the learned counsel, the trial Court was not competent to pass the impugned order in the absence of a formal application in that behalf. Besides, according to the learned counsel only the counsel for Beant Singh, defendant, did not object to the withdrawal of the suit and that Amrik Singh, petitioner, never agreed to the same and, therefore, for this reason also, the trial Court could not pass the impugned order. In support of these contentions, the learned counsel relied upon D.A.V. College, Hoshiarpur Society Vs. Sarvada Nand Anglo Sanskrit Higher Secondary School, Managing Committee, Arjan Singh v. Ishar Singh 1981 P.L.J. 254 and Pahara Singh 1981 P.L.J. 254, v Gram Panchayat, Behbal Kalan 1978 Curr. L. J. 168.

After hearing the learned counsel for the parties, I am of the considered opinion that the trial Court acted illegally and with material irregularity in the exersice of its jurisdiction in passing the impugned order. Even if the counsel for one of the defendants did not object to the same even then it was no ground to allow the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action. The concession, if any made by the counsel for the defendant, was on a question of law. Unless the trial court itself found any formal defect in the plaint as required under Order XXIII rule 1 of the Code, no order for the withdrawal of the suit with permission to file a fresh suit on the same cause of action could be passed by it. In any case, the plaintiff himself had sought the amendment of the plaint earlier, which was allowed by the trial Court on payment of Rs. 400/-as costs. In view of that order, it could not be said that the suit was likely to fail on the ground of that formal defect Admittedly, the suit had been pending for more than six years in the trial Court and the case was fixed for final arguments on January 5, 1982, when the trial Court allowed the plaintiff to withdraw the suit. The procedure adopted by the trial Court was not warranted and the order passed by it was, thus, wrong and illegal.

In this view of the matter, the revision petition succeeds and is allowed. The impugned order is set aside and the case is sent back to the trial Court to proceed with the suit in accordance with law. The parties have been directed to appear in the trial Court on December 13, 1983.