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Judgment
5 paragraphs · 414 wordsJ.V. Gupta, J.
This petition is directed against the order of the Additional District Judge, Ferozepur dated 1.3.1986, whereby he allowed the plaintiff to withdraw the suit as well as the appeal with permission to file a fresh suit subject to payment of Rs. 100/ as costs.
The plaintiff filed this suit for permanent injunction restraining the defendant from causing any interference in the lawful possession of the plaintiff as owner over the constructed area consisting of one room, a kitchen, courtyard and open space as shown in the site plan. The said suit was dismissed on merits by the trial Court on 1.4.1985. Dissatisfied with the same, the plaintiff filed the appeal. There he moved an application for permission to withdraw the suit as well as the appeal with liberty to file a fresh suit on the ground that he has not pleaded in the plaint the specific area of the house in question and, therefore, it is a formal defect. According to the plaintiff, this suit has also been dismissed due to this formal defect and the appeal is also likely to be dismissed. This application was contested by the defendant but the lower appellate Court allowed the said application. Hence, this petition.
After hearing the learned counsel for the parties, I find that the suit was never dismissed by the trial Court due to any formal defect as alleged in the application. Rather the suit was dismissed on merits. That being so, there was no occasion for the lower appellate Court to allow the plaintiff to withdraw the suit and the appeal with permission to file a fresh suit.
Moreover, the words `at any time'' in order 23 Rule 1, Civil Procedure Code would apply to the suit pending the trial Court. Once a decree is passed by the trial Court then certain rights are vested in the party in whose favour the suit is decided. Thus, the plaintiff was not entitled to withdraw the suit as a matter of course at any time after the decree is opposed by the trial Court. Reference by made to Jubedan Begum v. Sekhwati Ali Khan, AIR 1984 (P&H) 221. In view of the above discussion, this petition succeeds. The impugned order is set aside and the case is sent back to the lower appellate Court for deciding the appeal on merits in accordance with law. The parties have been directed to appear in his Court on 4th September, 1986.