Arvind Kapoor vs Deepak Kumar And Others

Ajay Mohan Goel, J

Despite service, none has put in appearance on behalf of respondent No. 3, accordingly, she is ordered to be proceeded against ex parte.

By way of this petition, the petitioner has prayed for the following reliefs:

"It is, therefore, respectfully prayed that this petition may kindly be allowed, the records of the case may kindly be called for, the impugned order dated 22.8.2019 passed by the Learned Senior Civil Judge, Court No. 1, Mandi in CMA filed on 22.09.2018 in Civil Suit No. 10507/2013 and CNR No. HPMA 030002072010 may kindly be quashed and set aside, application dated 22.09.2018 may kindly be allowed and the petition may kindly be permitted to withdraw the Civil Suit with liberty to file fresh on the same subject matter and same cause of action.

Any other order and/or directions which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case may also be passed and justice be done."

The case of the petitioner is that he has filed a suit for permanent prohibitory and mandatory injunction. During the pendency of the suit, certain events took place, in the backdrop of which, the petitioner filed an application under Order 23, Rule 1(3) read with Section 151 of the Code of Civil Procedure before the learned Court below with the prayer that he may be permitted to withdraw the suit, with liberty to file a fresh suit on the same cause of action. The application stands dismissed by the learned Court below vide order dated 22.08.2019 and the same stands assailed by the petitioner before this Court.

Having heard learned Senior Counsel for the petitioner as well as learned counsel appearing for respondents No. 1, 2(a), 2(b) and 4, as agreed, this petition is disposed of with the observation that the petitioner shall be at liberty, if so advised, to file appropriate applications before the learned Court below under Order 6, Rule 17 of the Code of Civil Procedure as well as Order 1, Rule 10 thereof. In the event of any such applications being filed, the same shall be decided by the learned Court below in accordance with law, after affording an opportunity of being heard to all concerned. It is observed that said applications, if filed, shall be decided by the learned Court below without being influenced by the order passed by it in the application filed by the present petitioner under Order 23, Rule 1(3) of the Code of Civil Procedure. It is further clarified that this Court has not made any observation on the merits of the case and if the applications are filed under Order 6, Rule 17 of the Code of Civil Procedure as well as Order 1, Rule 10 thereof, then the same shall be decided by the learned Court below uninfluenced by any observation made by this Court in this order. Parties are directed to remain present before the learned Court below on 6th October, 2020. Miscellaneous applications, if any, also stand disposed of.