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2011 DIGILAW 324 (PNJ)

Harkirat Singh Mangat v. Rohit Thapar

2011-01-27

M.M.S.BEDI

body2011
Judgment M.M.S.Bedi, J. 1. Application for impleading Rohit Thapar, Advocate, as party is dismissed. 2. The petitioner, who himself is an Advocate had filed a suit for mandatory injunction against the defendant- respondents praying that possession of the land in dispute should be restored to him and a declaration should be granted that agreement and lease deed executed between plaintiff- petitioner and the defendant- respondents in respect of the property on which brick kiln had been installed were liable to be cancelled. Besides this, the plaintiff- petitioner had sought a decree for grant of damages to the tune of 32,34,040/- with interest. On March 18, 2008, the trial Court passed the following order:- "Present:- Plaintiff Harkirat Singh in person. Sh.Rohit Thapar, Adv. counsel for the defendant. Both the Ld. Counsel for the parties have stated that the matter has been compromised and defendant Inderjit Singh and his counsel Sh.Rohit Thapar, Adv. have suffered statement that as per the compromise, he has handed over the possession of the entire suit property to the plaintiff Harkirat Singh Mangat and that as per the compromise, all the cases have been withdrawn. Plaintiff Harkirat Singh has also made a statement that he has taken the physical possession of the property as handed over by the defendant to him today and he withdraw all the proceedings pending in this Court in this case, however, he reserve his right for recovery of the amount against the defendant on the same cause of action as permitted by the court. In view of the matter having been compromised and the statements so recorded by both the parties, the present suit of the plaintiff and counter claim of defendant and all the proceedings arising thereof are ordered to be dismissed as withdrawn. Plaintiff if so advised, is at liberty to initiate the recovery proceedings against the defendant on the same cause of action. File be consigned to record room." 3. A perusal of the abovesaid order indicates that the plaintiff petitioner had allegedly made a statement that he had taken physical possession of the property as it had been handed over to him by the defendant- respondents , he had withdrawn all the proceedings reserving his right for recovery of the amount due from the defendant on the same cause of action. The trial Court had jurisdiction under Order 23 CPC to permit the plaintiff- petitioner to withdraw the suit or abandon part of claim as per Order 23 Rule 1 CPC. At the same time, the trial Court had a jurisdiction to grant permission to the plaintiff to institute fresh suit for the same subject matter or for part of his claim as per provisions of Order 23 Rule 3 (b) CPC subject to imposition of some costs for filing fresh suit in respect of the same subject matter. 4. The petitioner who himself is an Advocate, apprehending that his right to file fresh suit for recovery stands defeated, filed an application for review before the trial Court in which a request was made for reviewing the order dated March 18, 2008 alleging that no compromise had been effected between the parties nor his statement was recorded. It was claimed that no question was put to the plaintiff in this respect which was resulted in the failure of justice. The trial Court has dismissed the application for review on the ground that the plaintiff- petitioner had himself made a statement in the Court which has been quoted in the order dated August 28, 2010 and dismissed the application for review observing that the plaintiff petitioner is a retired Joint Director, Prosecution, and is well-versed with the procedures of law. 5. The petitioner appearing in persons before this Court has argued that the word used by the trial Court while dismissing the suit on March 18, 2008 would prejudice his right to file suit for recovery of the damages for use and occupation of the property in dispute by the defendant respondents. 6. On asking of the Court the petitioner has submitted that he has actually taken possession of the property and that he does not seek a decree either for recovery of the possession or for possession of the property in dispute. He claims that he has got no grievance against the order dated March 18,2008 disposing of his suit on the basis of his statement abandoning part of the claim but his grievance is that the word used "dismissed" in the order dated March 18, 2008 would prejudice his right of recovery of the money due from the defendants. 7. He claims that he has got no grievance against the order dated March 18,2008 disposing of his suit on the basis of his statement abandoning part of the claim but his grievance is that the word used "dismissed" in the order dated March 18, 2008 would prejudice his right of recovery of the money due from the defendants. 7. After hearing the petitioner in person, I am of the opinion that the order dated March 18, 2008 had been passed on the basis of the statement made by the petitioner abandoning part of his claim and withdrawing his suit. It is clarified that the order dated March 18, 2008 does not affect the liberty of the petitioner to institute a suit in respect of the claim which he had not withdrawn i.e. damages or recovery. The user of word "dismissed" qua the part of the claim will not hamper his right to recover the amount due from the defendant- respondents, if any, subject to the law of limitation and the law of Court fee. It is made clear that in case the plaintiff- petitioner opts to review his suit for the claim not abandoned by him i.e. for recovery, he would be entitled to adjust the Court fee affixed by him for recovery of damages in his suit earlier filed. It will be open to the plaintiff- petitioner to avail the other legal remedies available to him in accordance with law. Disposed of with the above clarification.