Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1218 (PNJ)

Bachan Singh v. Nahar Singh

2012-09-17

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Respondents no. 1 to 4/plaintiffs filed suit against the appellants and respondents no. 5 to 7 as defendants, claiming 3/8 share in the suit land measuring 34 bighas 6 biswas 13 biswansis and claimed possession thereof accordingly. 2. Learned trial court vide judgment and decree dated 9.5.1984 dismissed the suit inter alia holding that plaintiffs are not joint owners of the suit land. It was also held that vakaltnama, plaint and amended plaint had not been signed at all by plaintiffs no. 3 and 4 and therefore, there was no valid suit on their behalf. 3. Plaintiffs filed first appeal against judgment and decree of the trial court. In first appeal, the plaintiffs moved application under Order 23 Rule 1 of the Code of Civil Procedure for permission to withdraw the suit with liberty to file fresh suit alleging that there was technical defect in the suit inasmuch as plaintiffs no. 3 and 4 had not signed the plaint and vakaltnama etc. The said application was resisted by the defendants. Learned lower appellate court vide impugned judgment and decree dated 1.9.1986 has allowed the aforesaid application of the plaintiffs and thereby set aside the judgment and decree of the trial court and dismissed the suit as withdrawn with liberty to file fresh suit on the same cause of action subject to payment of Rs. 500/- as costs. Feeling aggrieved, defendants no. 1 and 5 to 7 have filed this second appeal. 4. I have heard learned counsel for the parties and perused the case file. 5. Counsel for the appellants contended that suit was dismissed not only on the ground that plaint etc. had not been signed by plaintiffs no. 3 and 4 but also on merits holding that plaintiffs were not joint owners of the suit land and therefore, at the stage of first appeal, the plaintiffs could not be permitted to withdraw the suit with liberty to file fresh suit on the same cause of action. 6. Counsel for respondents no. 1 to 4/plaintiffs countered the aforesaid contention by submitting that issue no. 4 has been decided against the plaintiffs by the trial court on the aforesaid ground and therefore, there is no infirmity in impugned judgment of the lower appellate court. 7. I have carefully considered the aforesaid contentions. 6. Counsel for respondents no. 1 to 4/plaintiffs countered the aforesaid contention by submitting that issue no. 4 has been decided against the plaintiffs by the trial court on the aforesaid ground and therefore, there is no infirmity in impugned judgment of the lower appellate court. 7. I have carefully considered the aforesaid contentions. Following substantial question of law arises for determination in this second appeal:- “Whether in the facts and circumstances of the instant case, the plaintiffs could be permitted at the stage of first appeal to withdraw the suit with liberty to file fresh suit on the same cause of action.?” 8. It is undisputed that the trial court dismissed the suit of the plaintiffs on merits also holding that they were not proved to be joint owners of the suit land. Finding on issue no. 4 was also against the plaintiffs that the plaint and vakaltnama had not been signed by plaintiffs no. 3 and 4. However, since the suit has been decided and dismissed by the trial court on merits also and not only on the basis of the defect that plaint etc. had not been signed by plaintiffs no. 3 and 4, lower appellate court gravely erred in permitting the plaintiffs to withdraw the suit with liberty to file fresh suit on the same cause of action. On the contrary, the defect of not signing the plaint by plaintiffs no. 3 and 4 could be cured in accordance with law, may be on payment of costs. Moreover, the suit was also maintainable by only plaintiffs no. 1 and 2 as alleged co-sharers for the benefit of all alleged co-sharers i.e. including plaintiffs no. 3 and 4. 9. In view of the aforesaid, I find that in the facts and circumstances of the instant case, the suit could not be permitted to be withdrawn at the stage of first appeal with liberty to file fresh suit. Finding of the lower appellate court in this regard is gravely erroneous and illegal and is liable to set aside. Substantial question of law framed hereinbefore is answered accordingly. 10. Resultantly, the instant second appeal is allowed. Judgment and decree of the lower appellate court are set aside. First appeal filed by the plaintiffs is restored to the files of the lower appellate court to be decided in accordance with law on merits. Substantial question of law framed hereinbefore is answered accordingly. 10. Resultantly, the instant second appeal is allowed. Judgment and decree of the lower appellate court are set aside. First appeal filed by the plaintiffs is restored to the files of the lower appellate court to be decided in accordance with law on merits. Plaintiffs shall be at liberty to file application in the lower appellate court to cure the defect of non-signing of plaint and vakaltnama etc. by plaintiffs no. 3 and 4. If any such application is moved, the same shall also be decided by the lower appellate court in accordance with law. Records of both the courts be sent at once to the lower appellate court. Parties are directed to appear before the lower appellate court on 18.10.2012. The lower appellate court shall decide the appeal as expeditiously as possible and preferably within six months from the aforesaid date fixed for appearance of the parties before it. ---------0.B.S.0------------