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Wazir Singh Chhela Blaka Baba Mulangah Shah Vs. Hidayat Shah Shrida - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 800 of 1964
Judge
Reported inAIR1967P& H405
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 1
AppellantWazir Singh Chhela Blaka Baba Mulangah Shah
RespondentHidayat Shah Shrida
Appellant Advocate V.M. Gaind, Adv. for; R.P. Bali, Adv.
Respondent Advocate H.L. Sarin and; Asha Kohli, Advs.
DispositionPetition allowed
Excerpt:
- - in the defendant's reply opposing this prayer, it was averred that there was no technical defect in the suit and the whole of the evidence of the parties had been recorded, and finding that the plaintiff's case was weak and could not be decreed, the application for withdrawal with permission to file a fresh suit was presented. the application, as i am informed from the bar was apparently presented for the purpose of filing a fresh suit because the plaintiff thought that there was some technical or formal defect in the suit because of which it must fail......dismissing the plaintiff-petitioner's suit as withdrawn and declining to give permission to file a fresh suit under order 23, rule 1, code of civil procedure.2. it appears from the facts stated by the respondent's counsel that the suit for possession of the property in dispute was instituted on 21-9-1963 on 21-1-1964, written statement was filed and on 3-2-1964, replication was put in. the plaintiff's evidence started on 27-5-1964 and was concluded on 7-8-1964. the defendant's evidence was being recorded when on 11-8-1964, an application was filed by the plaintiff for withdrawing the suit with permission to file a fresh suit on the same cause of action because there was some technical defect in the suit. the plaintiff also made a statement in support of the petition seeking permission to.....
Judgment:
ORDER

I.D. Dua, J.

1. This is a plaintiff's revision from the order of Shri Balwant Singh Tej, Subordinate Judge 1st Class, Batala. dismissing the plaintiff-petitioner's suit as withdrawn and declining to give permission to file a fresh suit under Order 23, Rule 1, Code of Civil Procedure.

2. It appears from the facts stated by the respondent's counsel that the suit for possession of the property in dispute was instituted on 21-9-1963 On 21-1-1964, written statement was filed and on 3-2-1964, replication was put in. The plaintiff's evidence started on 27-5-1964 and was concluded on 7-8-1964. The defendant's evidence was being recorded when on 11-8-1964, an application was filed by the plaintiff for withdrawing the suit with permission to file a fresh suit on the same cause of action because there was some technical defect in the suit. The plaintiff also made a statement in support of the petition seeking permission to withdraw the suit with permission to file a fresh one. In the defendant's reply opposing this prayer, it was averred that there was no technical defect in the suit and the whole of the evidence of the parties had been recorded, and finding that the plaintiff's case was weak and could not be decreed, the application for withdrawal with permission to file a fresh suit was presented.

3. The trial Court came to the conclusion that there was no formal defect as alleged by the plaintiff. The claim of inheritance to the gaddi on the death of Shri Ghana Shah was a distinct cause of action and the suit was based on some writing. With this observation, the trial Court felt that there was no ground for granting permission to file a fresh suit. But at the same time, the Court dismissed the suit as withdrawn.

4. In my opinion, it was wholly improper on the part of the learned Subordinate Judge to treat the prayer for withdrawal of the suit as distinct and separable from the prayer seeking permission to file a fresh suit in respect of the same subject-matter. There is nothing on record to show that the plaintiff was desirous of withdrawing the suit even in the absence of permission by the Court to institute a fresh suit for the same subject-matter. The application, as I am informed from the bar was apparently presented for the purpose of filing a fresh suit because the plaintiff thought that there was some technical or formal defect in the suit because of which it must fail. When the Court disagreed with this submission in its entirety, then, in my opinion, the only course justly and legitimately open to the Court was to disallow the petition which was composite and to proceed with the trial and disposal of the suit in the normal course. I am informed that the defendant's own statement was still to be recorded. It is of course open to the plaintiff even now to withdraw the suit unconditionally, if he so desires.

5. I am, therefore, constrained to allow this revision and setting aside the order of the Court below, send the case back to it for further proceedings in accordance with law and in the light of the observations made above. Parties have been directed to appear in the Court below on 20-12-1965 when a short date should be given for further proceedings and suit must be concluded within one month There would be no order as to costs in the proceedings in this Court.


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