Piara Singh vs Niranjan Singh

J.V. Gupta, C.J.

This revision petition is directed against the order of the trial Court dated December 19, 1989, whereby the application to withdraw the suit with permission to file a fresh suit was allowed on payment of Rs. 100/ as costs.

The plaintiffrespondent filed the suit for possession of 80 bighas and 141/2 biswas of land on May 10, 1985. According to the defendantspetitioners, the evidence was closed on October 27, 1989, On February 9, 1989, when the case was fixed for arguments, the plaintiffs moved an application that they may be allowed to withdraw the suit. Without giving any notice of the said application, the same was allowed by the trial Court by the impugned order on the ground that the description of the property in suit had not been given properly and due to this formal defect, the suit could not succeed.

The learned counsel for the petitioner submitted that there was absolutely no occasion for the plaintiff to withdraw the said suit at that stage which had been pending for more than five years. Moreover, argued the learned counsel, no notice of the application was given and, therefore, no reply could be filed thereto.

On the other hand, the learned counsel for the plaintiffrespondent submitted that the order was passed in the presence of the counsel for the defendant and, therefore, no separate notice as such was required. In support of the contention, reliance was placed on AIR 1946 Lahore 429.

After hearing the learned counsel for the parties, I find that the trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction. At that stage of the suit, there was absolutely no occasion for the trial Court to allow the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action, which had been pending for about five years. Moreover, if the plaintiff had not given proper description of the property, in dispute, that by itself was no ground to allow him to withdraw the suit. For that purpose, he could seek his alternative remedy, if any.

Consequently, this revision petition succeeds. The impugned order is set aside and the application under Order XXIII rule 1, Code of Civil Procedure, is dismissed with costs. The parties have been directed to appear in the trial Court on March 25, 1991, and the Court will proceed with the suit in accordance with law from the stage it was left.