HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. : 168 of 2011 Decided on: 1.8.2011 Om Raj ……… Petitioner. Versus Rajnish Kumar and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.Romesh Verma, Advocate. For the respondents: Mr.Naveen K. Bhardwaj, Advocate. V.K. Ahuja, J.(Oral): Present petition has been filed by the petitioner/plaintiff against the order passed by the learned Civil Judge (Senior Division), Nadaun, dated 23.4.2011, dismissing the application filed by the petitioner under Order 23 Rule 1(3) read with Section 151 CPC for withdrawal of the suit and permission to file the same afresh. 2. A notice of the petition was issued to the respondents. 3. I have heard the learned counsel for the parties and have gone through the certified copies of the documents placed on record. The record of the case was not necessary and was not summoned accordingly. 4. The petitioner as plaintiff has filed a suit for declaration and permanent injunction claiming the property in suit of the deceased Sant Ram. The defendants had allegedly set up a Will, dated 6.3.2003, executed in their favour. The issues were framed by the learned trial Court and the case was fixed for the plaintiff’s evidence. During the pendency of the case, the plaintiff filed the application under Order 23 Rule 1(3) CPC for permission to withdraw the suit and to institute a fresh suit after taking the plea in regard to a Will allegedly executed - 2 - by the deceased in favour of the petitioner and others in regard to the suit property. The petitioner had pleaded that he could not take up this plea earlier since the Will was not traceable and now he has learnt about the Will and wants to take up this plea so that this question could be decided in the present suit itself. 5. The subject matter of the suit is the same, the property involved in the suit is the same and the question as to whether any Will was executed by the deceased in favour of the petitioner and others has to be proved in the present suit itself and not by filing a separate suit. Therefore, the application deserves to be allowed and the same is allowed accordingly. However, keeping in view the fact that the suit was filed in the year 2004 and the petitioner had already taken three opportunities to produce his evidence, the application is allowed subject to Rs.2,500/- as costs payable by the plaintiff to be petitioners at the time of filing of the fresh suit. The plaintiff is permitted to withdraw the suit and he is at liberty to file a fresh suit within a period of two months from today after depositing the costs in the court payable to the defendants. 6. The petition stands disposed of accordingly, so also the pending application(s), if any. August 1, 2011 (V.K. Ahuja), (tilak) Judge