Ram Chander vs Jatish Chander

J.S. Sekhon, J.—The defendant has directed this revision petition against the order dated 11.3.1983 of the Senior Subordinate Judge, Narnaul, allowing the plaintiff to withdraw the suit, with permission to file a fresh one on the same cause of action.

Briefly, the facts are that the plaintiff filed a suit for permanent injunction against the defendant to the effect that he be not restrained from using the common chowk and open yard located in Mohalla Chanduwara Narnaul, as the same is being used for common purposes and he be not restrained from going to the adjoining temple through this open space. The suit was resisted by the defendant by raising formal objection regarding its maintainability due to lack of proper description of the property and for non-impleading the necessary parties. After issues were framed by the trial Court and the case as at the stage of recording evidence of the plaintiff, the latter filed an application for permission to withdraw the suit under the provisions of Rule 1, Order 23 of the CPC (hereinafter referred to as the ''Code'') contending that the property in dispute had not been properly described in the plaint and the necessary parties had not been impleaded,

The trial Court allowed the suit to be withdrawn on these grounds by remaking that this suit filed in the year 1977 had already grown old. The plaintiff was however, burdened with costs of Rs. 4/-.

Mr. Sarin, learned counsel for the petitioner contended that the mis description of the property or non impleading of necessary parties are not formal defects for allowing the withdrawal of the suit with permission to file a fresh one on the same cause of action. He has ralied upon the finding of the Division Bench of this Court in Chander etc. v. Gulzari Lal etc. (1979) 81 P.L.R. 634, as well as the finding of the Bombay High Court in the Asian Assurance Co. Ltd. v. Madholal Sindhu AIR (37) 1950 Bom. 378. Mr. Chandra Singh, learned counsel for the respondent, on the other hand supported the finding of the trial Court by contending that wrong description of the property and non-impleading of necessary parties are certainly formal defects and would result in the failure of the suit. Reliance in this regard has been placed on the finding of this Court in Joginder Singh v. Mohinder Singh 1978 R.L.R. 197.

A perusal of the plaint shows that in its heading full description of the vacant plot in dispute has been given. The plaintiff has also filed a plan along with the plaint depicting the property in dispute. Under these circumstances the volitional alleged mistake on the part of the plaintiff in describing the property will not be a just ground for allowing the withdrawal of the suit under the provisions of Rule 1 Order 23 of the Code, as held by the Division Bench of this Court in Chander''s case (supra).

The non joining of necessary parties is also not a good ground to attract the provisions of Rule 1 Order 23 of the Code as it cannot be said to be a formal defect. The finding of the Bombay High Court in the Assian Assurance Co. Ltd''s. case (supra) can be safely referred in this regard. The finding of this Court in Joginder Singh''s case (supra) are not applicable to the case in hand as therein during the pendency of the suit, in partition proceedings, and ownership of the plaintiff in some of the Khasra Number was changed. Under these circumstances, it was held that he was rightly allowed to withdraw the suit under the provisions of Rule 1 Order 23 of the Code as it amounted to a sufficient ground for allowing the plaintiff to file a fresh suit on the same cause of action.

It appears that the trial Court wanted to dispose of an old suit by unnecessarily invoking the provisions of Rule 1 Order 23 of the Code. Thus under these circumstances, the impugned order of the trial Court being not legally sustainable, the same is hereby set aside by accepting this revision petition. There will, however, be no order as to costs. The trial Court shall restore the suit against its original number and dispose it of in accordance with law. The parties through their counsel are directed to appear before the trial Court on 7.9.1988. The trial Court file be sent back forthwith.