Sushil Kumar and Others vs Sh. Goshala and Others

G.C. Garg, J.—This revision is directed against the order dated 8.2.1992 of learned Sub Judge, Ist Class, Sirsa.

Sushil Kumar filed a suit against Neki Ram etc. being civil suit No. 1486 of 1991, for permanent injunction restraining the defendants from interfering in his possession over the property in dispute as fully detailed in the head note of the plaint.

During the pendency of the suit, the plaintiff moved an application under Order 23, Rule 1 of the CPC seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The application was opposed, Trial Court while disposing of this application, came to the conclusion that application under Order 23 Rule 1 of the Code cannot be granted as no formal defect has been pointed out in the suit and in any case, the petitioner could amend his plaint by moving application under Order 6 Rule 17 of the Code. The application was consequently dismissed. However, while disposing of the application, suit No. 424-C of 1992 which the plaintiff had also filed during the pendency of the earlier suit was also ordered to be dismissed being not maintainable. Not only this, the stay application moved by the plaintiff for ad interim relief in the second suit was also ordered to be dismissed. It is this order which is under challenge in this revision petition.

Learned counsel for the petitioner submitted that the petitioner moved application under Order 23 Rule 1 of the Code for seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action and it was brought out that in fact another suit being Civil Suit No. 424-C of 1992 has already been filed. Learned counsel submitted that the trial Court could at the most dismiss the application under Order 23, Rule 1 of the Code but while disposing of the application, the trial Court was not right and it acted illegally in dismissing not only the civil Suit 424-C of 1992 but also the application for ad interim relief moved therein. According to the learned counsel, neither the suit nor the application for ad interim relief was listed for hearing before the learned Subordinate Judge and no application had been moved in the second for vacation of the stay order or dismissal of the suit being barred under any provisions of law or otherwise not maintainable.

On a consideration of the matter and having regard to the facts and circumstances of this case, I am of the opinion that the contention has merit. A reading of the impugned order goes to show that the plaintiff-petitioner moved application under Order 23 Rule 1 of the Code. It was open to the trial Court to grant the application or to dismiss the same on its own merits. The trial Court in fact dismissed the application with the observations that the plaintiff cannot be permitted to withdraw the suit in the absence of any formal defect and that the same can be amended if need be. The trial Court while disposing of the application could not come to a conclusion that the other suit filed by the plaintiff, may be on the same very cause of action, was not maintainable and was liable to be dismissed and thereafter dismiss the suit and the application for ad interim relief as well. It was certainly permissible to the trial Court to examine an application, if any, moved by the defendant for dismissal and/or for vacation of the ad-interim order granted therein. But while disposing of the application in another suit, it could not at the same time order dismissal of the other suit. In that view of the matter, this revision petition is allowed, order under revision is set aside to the extent that the application moved by the plaintiff under Order 23 Rule 1 of the Code in Civil Suit No. 1486 of 1991 shall stand dismissed but the other portion of the order vide which civil suit No. 424-C of 1992 and the application for ad-interim relief moved therein has been dismissed is set aside and civil suit No. 424-C of 1992 and the application moved therein for ad- interim relief is restored to its original number to be dealt with by the trial Court in accordance with law. Parties through their counsel are directed to appear in the trial Court on 17.9.1997. No costs.