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2015 DIGILAW 597 (HP)

Subhashna Devi v. Rajinder Kumar

2015-05-26

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. - CMP No. 983 of 2015 & RSA No. 46 of 2015. Power of attorney has not been filed on behalf of the respondent. There is also no appearance on their behalf. They are, therefore, proceeded against ex-parte. Consequently I proceed to dispose of the present application filed under Order 23, Rule 1 (3) of the Code of Civil Procedure with a prayer to allow the appellant-plaintiff to withdraw the suit with liberty reserved to file fresh suit on the same cause of action. 2. The permission to withdraw the suit has been sought on the ground inter alia that the demarcation report produced in evidence by the appellant-plaintiff in the trial Court has not been relied upon by both courts below at the pretext that the demarcation has not been conducted in accordance with Rules. The non-availability of a demarcation report based upon the demarcation conducted as per Rules amounts to a formal defect in the suit and the same has been dismissed on account of such formal defect alone. Also that in case the Gram Panchayat is a necessary party in the suit, the suit may fail on account of the Gram Panchayat has not been impleaded as party, hence formal defect. 3. Respondent-defendant have not opted to put in appearance and contested the application, Therefore, on going through the record and on taking into consideration the submissions made by learned counsel representing the appellant-plaintiff, it is apparent that the suit filed for the relief of mandatory injunction against the respondents-defendants has failed on account of the fact that both Courts below have refused to place reliance upon the demarcation report at the pretext that the same is not based upon the demarcation conducted, in accordance with the Rules. 4. As a matter of fact, it is the Court, which has appointed the Local Commissioner for conducting the demarcation. The Local Commissioner after doing the needful has submitted the report. The appellant-plaintiff has placed reliance on the report so submitted by the Local Commissioner in order to substantiate his claim in the suit. The report, however, has not been relied upon by both Courts below on the ground that the same is not based upon the demarcation conducted as per Rules. In my considered opinion to conduct the demarcation as per Rules, was not within the control of the appellant-plaintiff. The report, however, has not been relied upon by both Courts below on the ground that the same is not based upon the demarcation conducted as per Rules. In my considered opinion to conduct the demarcation as per Rules, was not within the control of the appellant-plaintiff. It was for the Local Commissioner to have conducted the demarcation on the spot as per Rules. In case there is breach of Rules while conducting the demarcation, the appellant-plaintiff cannot be penalised for the same. 5. The perusal of the judgment and decree under challenge reveals that it is the demarcation of the land not conducted on the spot as per Rules weighed heavily in the mind of both Courts below while non-suiting the appellant plaintiff. The present, therefore, is a case, which suffers from formal defects on account of non-availability of the demarcation report based upon the demarcation conducted as per Rules and non-impleadment of the Gram Panchayat concerned as party, hence falls within the ambit of Order 23, Rule 1 (3) of the Code of Civil Procedure. Although the permission to withdraw the suit, has been sought, at such a stage, when the parties are before this Court in second appeal, yet in the given facts and circumstances and in the ends of justice, this Court feels that if the permission as sought is granted no prejudice is likely to be caused to respondents-defendants because in that event they will also get an opportunity of being heard and to contest the suit. The application is, therefore, allowed. Consequently, the appellant-plaintiff is permitted to withdraw the suit with liberty reserved to file fresh one on the same cause of action, in accordance with law. Consequently, the appeal also not survives and is accordingly disposed of. Pending applications, if any, shall also stand disposed of.