In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 2924 of 2009 Date of decision: November 04, 2009 Maghar Singh .. Petitioner Vs. Hukam Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. A.S. Jatana, Advocate for the petitioner. Ms. Maninder Kaur, Advocate with Ms. Sonia G. Singh, Advocate for the respondent No.1. A.N. Jindal, J Stated that the respondent No.5 is a performa respondent, as such, his service is dispensed with. The petitioner has invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 17.4.2009 passed by the Civil Judge (Jr. Division), Sunam, dismissing the application under Order 23 Rule 1 of CPC filed by the defendant petitioner, seeking permission to withdraw the counter claim and to file fresh suit. The plaintiff (now respondent) filed a suit for permanent injunction restraining the defendant (now petitioner) from interfering in the possession over the land comprised in Khata No.75/203, Rect. & Killa No. 202/2/1 (0-12 ½) situated at village Fatehgarh Sahib. During the pendency of the said suit, the defendants in their written statement set up a counter claim stating that they had purchased 11 marla out of the land comprised in Khasra No.202/2/1 (0-12 ½) vide sale deed dated 18.1.1984, therefore, he has sought permanent injunction by claiming ownership over the said land on the basis of the sale deed dated 18.1.1984. Later on, by way of an application for withdrawal of the counter claim stating that partition proceedings had taken place in their absence, as such, he wants to challenge the said partition proceedings by way of filing fresh suit, he has sought withdrawal of the counter claim. He has shown apprehension that he may not fail in the counter claim on account of technical defect. Civil Revision No. 2924 of 2009 -2- *** The trial court dismissed the application. From the perusal of the counter claim, it appears that the petitioner has not challenged the partition proceedings which are stated to have taken place behind the back of the petitioner. It is also not clear as to which portion of Khasra No.202 was purchased by the petitioner through the sale deed No.1425 dated 18.1.1984. Thus, the apprehension of the petitioner appears to be reasonable that if the counter claim is allowed to continue, then on account of aforesaid technical defects, he may not succeed in the case. The trial court has fallen in error while declining the application which has rendered the impugned order as illegal warranting interference by this court. Resultantly, I allow the revision petition, set aside the impugned order and the counter claim is ordered to be withdrawn with permission to file fresh suit on the same cause of action, subject to payment of Rs.5000/- as costs, November 04, 2009 (A.N. Jindal) deepak Judge