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2014 DIGILAW 104 (PNJ)

Mohan Singh v. Balbir Singh

2014-01-13

SABINA

body2014
Sabina, J. This petition has been filed challenging order dated 11.12.2013 (Annexure P-3), whereby application moved by the petitioner under Order 23 Rule 1 of the Code of Civil Procedure, 1908 (CPC for short) for permission to withdraw the suit with liberty to file a fresh one on the same cause of action was dismissed. Learned counsel for the petitioner has submitted that during the pendency of the suit, petitioner had realised that the relief qua possession was also liable to be claimed by him. Hence, application under Order 23 Rule 1 CPC was moved by the petitioner. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Sant Baba Darshan Singh Sewak Baba Kharak Singh vs. School Beerh Baba Budha Sahib and others 2006 (2) RCR (Civil) 160 wherein, it was held that even at appellate stage, permission could be granted to the plaintiff to withdraw the suit with permission to file a fresh one on the same cause of action in case of a formal defect. Similar view was taken by this Court in Vinod Kumar vs. Gurmail Singh and another 2012 (1) RCR (Civil) 539 and in Sunita Chhokra vs. Shanti Devi and others 2012 (1) Law Herald 860. 2. In the present case, petitioner-plaintiff had filed a suit for mandatory injunction directing the respondents-defendants to construct the wall from point A to B demolished by them illegally and forcibly for carving out a passage through the plot of the plaintiff and for permanent injunction that defendants be restrained from causing any interference in the possession of the plaintiff. 3. Now the case is listed before the trial court for rebuttal evidence, if any, of the petitioner and arguments. At this stage, petitioner moved the application under Order 23 Rule 1 CPC seeking permission to withdraw the suit with liberty to file a fresh one on the same cause of action. 4. Case of the petitioner is that he also needs to seek the relief of possession qua the portion, which was being used by the defendants illegally as a passage. 5. Learned trial Court, while dismissing the application moved by the petitioner, rightly observed that the application had been filed at the fag end of the trial when the case was listed for rebuttal evidence of the petitioner and arguments. The suit was filed by the petitioner on 4.9.2009. 5. Learned trial Court, while dismissing the application moved by the petitioner, rightly observed that the application had been filed at the fag end of the trial when the case was listed for rebuttal evidence of the petitioner and arguments. The suit was filed by the petitioner on 4.9.2009. By now parties have already led their, evidence in support of their respective pleas. Petitioner was already in the knowledge of the facts now mentioned in the application. In these circumstances, learned trial Court rightly came to the conclusion that there was no ground to allow the application filed by the petitioner under Order 23 Rule 1 CPC. There is no quarrel with the proposition of law settled by the judgments relied upon by the learned counsel for the petitioner but the same fail to advance the case of the petitioner as these are based on different facts. No ground for interference by this Court is made out. Dismissed.