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2000 DIGILAW 1453 (PNJ)

Daljit Kaur etc. v. Ujjagar Singh etc.

2000-11-27

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is civil revision and has been directed against the order dated 11.10.1999 passed by Addl. Civil Judge (Sr. Division), Baba Bakala, vide which he dismissed the application of the petitioners under Order 23 Rule 1 CPC. 2. Some facts can be noticed in the following manner :- Plaintiffs/petitioners filed a suit for declaration that they are owners in possession of the land measuring 14 kanals 11 marlas fully described in the head-note of the plaint, as per jamabandi for the year 1987-88, situated at village Mahsampur Khurd, Tehsil Baba Bakala and the case set up by the petitioners in brief was that they have become the owners of the property by afflux of time because the predecessor of the defendants did not got the mortgage redeemed within the statutory period. The suit was contested and issues were framed. During trial it transpired to the plaintiffs/petitioners that in fact the mortgage deed was created by Mallha Singh son of Hukam Singh and not by Boota Singh son of Hukam Singh. Further, the case set up by the plaintiffs was that they made an application under Order 6 Rule 17 CPC and prayed that instead of Boota Singh, name of Mallha Singh be substituted because the date of the mortgage-deed is the same i.e. 14.7.1926. Unfortunately for the plaintiffs, the application was dismissed by the trial Court. They approached the High Court and their revision was also dismissed by the High Court, meaning thereby that the order on the application under Order 6 Rule 17, CPC has become final. According to the plaintiffs/petitioner, there was an apparent defect in the suit because they have wrongly relied upon the name of Boota Singh instead of Mallha Singh son of Hukam Singh as the mortgage was created by the predecessor of the defendants namely Boota Singh in favour of Basant Singh, predecessor of the plaintiffs and now they wanted to show that the mortgage was created by Mallha Singh son of Hukam Singh in favour of Jawala Singh, who is the father of Basant Singh husband of Daljit Kaur, plaintiff No. 1. Therefore, the permission should be granted to them to withdraw the present suit and to file a fresh one on the same cause of action. Therefore, the permission should be granted to them to withdraw the present suit and to file a fresh one on the same cause of action. Their application was resisted by the defendants and it was dismissed vide impugned order dated 11.10.1999 for the following reasons as given in the order :- "Learned counsel for the plaintiffs has suffered a statement that "he withdraw the present suit titled as Daljit Kaur v. Ujjagar Singh etc., on some technical ground and formal defect with permission for filling the fresh civil suit on the same cause of the action." In reply to this, the defendants filed reply under Order 23 Rule 1 CPC. Arguments heard. I have gone through the application as well as the interim order, passed by this Court from which it is quite clear that the appellant earlier moved an application under Order 6 Rule 17 of the CPC for the amendment of the pleadings alleging that Mallha Singh has mortgaged the suit land and the said application was dismissed by the Court. Later on, the applicant went into revision before the Honble High Court of Punjab & Haryana and the revision was also dismissed. Now, the applicant has moved this application to withdraw the suit with an intention to play fraud upon the defendants. After hearing both the parties I am of the view since it is sweet will of the plaintiffs to withdraw the suit but he has to point out the specific reasons and to give formal defects in the plaint, but he could not point out any defects in the plaint, but alleged that he intends to seek declaration on the basis of one mortgage deed executed by Mallha Singh in favour of fore-fathers of the plaintiffs in the year 1926, but it is not a formal defect, rather it may defective, will change the suit altogether. Moreover, the application under Order 6 Rule 17 CPC has already been dismissed by the Honble High Court, restraining them from taking fresh plea of mortgage alleged to have been executed by Mallha Singh in favour of the fore-fathers of the plaintiffs-applicants in the year 1926. As such, permission to file a fresh suit on the same cause of action after withdrawing the present suit cannot be granted. As such, permission to file a fresh suit on the same cause of action after withdrawing the present suit cannot be granted. Therefore, the suit is ordered to be dismissed as withdrawn without any permission to file fresh on the same cause of action. File be consigned to the record room." 3. Aggrieved by the said order, the present revision. 4. I have heard Mr. Arun Palli, Advocate on behalf of the petitioners, Mr. Ajay Lamba, Advocate on behalf of the respondents and with their assistance have gone through the records of this case. 5. Order 23 Rule 1(3) of the Code of Civil Procedure reads as follows :- "Where the Court is satisfied - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim." 6. The substance of the relief is to be seen and we should not be governed by the technicalities. The case set up by the plaintiffs was that they have become the owner of the suit property by afflux of time as the property has not been redeemed by the mortgagor or his successors within the stipulated period. It is true that the mortgage has been created by Mallha Singh and not by Boota Singh. The plaintiffs are claiming the ownership on the basis of the mortgage deed dated 14.7.1926. The cause of action for the plaintiffs is the mortgage deed itself. It was vehemently submitted by Mr. Lamba that now the plaintiffs want to put up a different case by not only changing the name of the mortgagor but also the terms of the mortgage deed itself. I have already stated above that the plaintiffs filed an application under Order 6 Rule 17 CPC for the amendment of plaint by incorporating the correct name of the mortgagor and mortgagee, but unfortunately, that application has been declined by the trial Court and the revision against the order of the trial Court has also been dismissed. I have already stated above that the plaintiffs filed an application under Order 6 Rule 17 CPC for the amendment of plaint by incorporating the correct name of the mortgagor and mortgagee, but unfortunately, that application has been declined by the trial Court and the revision against the order of the trial Court has also been dismissed. These two orders make the case of the plaintiffs more strong because there is a formal defect and the suit is bound to fail on these technical grounds. The trial court has not taken all these aspects into notice while dismissing the application. 7. There is one more illegality in the impugned order. Assuming for the sake of arguments that the application under Order 23 Rule 1(3) CPC was to be dismissed, by any stretch of imagination, the main suit itself could not be dismissed by the trial Court which has been done in this case. In these circumstances, I allow this revision and set aside the order dated 11.10.1999 and allow the application of the plaintiffs/petitioners under Order 23 Rule 1 CPC subject to payment of Rs. 5,000/- as conditional costs. It may be clarified that I am of the condoning the limitation for the advantage of the plaintiffs. If the costs are not deposited along with the new plaint or before filing the suit, the fresh suit shall not be entertained by the Civil Court. Revision allowed.