Civil Revision No. 1307 of 2009 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 1307 of 2009 Date of decision. 08.07.2009 Smt. Balwinder Kaur wife of Shri Manjit Singh, resident of village Sotal Baba, Tehsil and District Ropar. ....... Petitioner Versus 1. Punjab through Collector, Ropar Tehsil and District, Ropar. 2. Director Social Security and Child Development Department Sector 34, Chandigarh. 3. Raj Rani Child Development and Project Officer near Water Tanki near Bus Stand Morinda Tehsil and District Ropar. 4. Smt. Saroj Bala wife of Shri Surinder Singh resident of Ward No.3, Fatehpur Mohalla, near Nagar Khera Dharamshala Kurali Tehsil Kharar, District Ropar. ...... Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr.T.S. Chauhan, Advocate for the petitioner. Mr. Vivek Chauhan, AAG, Punjab for respondent nos. 1 and 2. Mr. Vijay Lath, Advocate for respondent nos. 3 and 4. **** Civil Revision No. 1307 of 2009 --2-- Sham Sunder, J. This revision-petition is directed against the order dated 15.05.2008, rendered by the Court of Additional Civil Judge ( Senior Division ), Ropar, vide which it dismissed the application under Order 23 Rule 1 of the Code of Civil Procedure, filed by the plaintiff ( now revision- petitioner ). 2. The plaintiff (now revision-petitioner) filed a suit for declaration to the effect that she was the Anganwari Worker, at Centre No.2 in village Sotal Baba Tehsil and District Ropar, duly appointed by the Gram Panchayat of Village Sotal Baba w.e.f. 09.09.2004. It was stated that she worked as Anganwari worker from 10.09.2004 to 09.12.2004 and, as such, was entitled to receive the allowances ( Bhatta ), admissible as per Rules, with a consequential relief of permanent injunction restraining the defendants (now respondents) from relieving/removing her (plaintiff) from the said post. 3. During the pendency of the suit, an application, under Order 23 Rule 1 of the Code of Civil Procedure was filed by the plaintiff seeking permission to withdraw the same (suit) with liberty to file a fresh one on the same cause of action. It was stated that there was some technical defect in the suit, on account of which, the same was likely to fail. Civil Revision No. 1307 of 2009 --3-- 4. The application was contested by the defendants (now respondents). It was stated that there was neither any formal defect, in the suit, nor there was sufficient cause to allow the withdrawal thereof with liberty to file a fresh one, on the same cause of action. 5. After hearing the Counsel for the parties, and, on going through the record, the trial Court, dismissed the application, vide order dated 15.05.2008. 6. Feeling aggrieved, the instant revision-petition, has been filed by the plaintiff-revision petitioner. 7. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 8. The Counsel for the revision-petitioner, submitted that, the order dated 09.03.2005, vide which Saroj Bala, defendant-respondent No.4 was appointed as Anganwari Worker, in the place of plaintiff (now revision-petitioner), came to her knowledge, after filing of the suit on 23.04.2005. He further submitted that if the same was not challenged by way of a fresh civil suit, the suit already filed by her, would become infructuous. He further submitted that on account of this reason, there was a formal defect, in the suit. He further submitted that there was also sufficient cause for allowing the application, to withdraw the suit, with liberty to file a fresh one, on the same cause of action. He also placed Civil Revision No. 1307 of 2009 --4-- reliance on Sambanda Naicker and others v. Ranganayaki Ammal and another AIR 1957 Madras 207 , in support of his contention. He further submitted that the application was wrongly dismissed by the trial Court. 9. On the other hand, the Counsel for respondents, submitted that there was no formal defect in the suit. They further submitted that if there was such a defect, the same could be got rectified, by way of amendment of the plaint, if the relief sought for, was not barred by limitation. They further submitted that there was also no sufficient cause for the grant of permission to withdraw the suit, with liberty to file a fresh one, on the same cause of action. They also placed reliance on Baljit Singh v. Jot Ram, 1994(2) Civil Court Cases 604 (P&H) in support of their contentions. They further submitted that the order passed by the trial Court, being legal, and valid, was liable to be upheld. 10. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded hereinafter. The grouse of the plaintiff (now revision-petitioner) was that she came to know of the order dated 09.03.2005, after the filing of the suit on 23.04.2005 and, as such, a formal defect, in the suit had accrued, which warranted the grant of permission, to her, to withdraw the same, with liberty to file a fresh one. It may be stated here, that the mere fact that a particular order was not challenged, though the same was in existence, at Civil Revision No. 1307 of 2009 --5-- the time of filing the suit, and the same was sought to be challenged lateron, did not mean that it amounted to the existence of a formal defect in the suit. As stated above, relief could be sought by way of amendment of the suit, if the same was otherwise permissible and not barred by limitation under the relevant provisions of law. It, therefore, could not be said that there was any formal defect in the suit. Even there was no sufficient cause to allow the application to withdraw the suit, with liberty to file a fresh one, on the same cause of action. The matter, therefore, was not covered under the provisions of Order 23 Rule 1(3) of the Code of Civil Procedure. The principle of law, laid down in, Baljit Singh's case (supra), was to the effect that if a defect could be rectified by way of amendment in the plaint, permission to file a fresh suit, on the same cause of action, should not be granted. The principle of law, laid down, in Baljit singh's case (supra) is fully applicable to the facts of the instant case. The facts of Sambanda Naicker and others' case (supra), being distinguishable from the facts of the present case, no help can be drawn by the Counsel for the revision- petitioner, therefrom. The trial Court was, thus, right in dismissing the application. The order rendered by the trial Court does not suffer from any patent illegality, or material irregularity or perversity, warranting interference, by this Court, in exercise of its revisional jurisdiction under Article 227 of the Constitution of India. Civil Revision No. 1307 of 2009 --6-- 11. For the reasons recorded above, the revision-petition, being devoid of merit, must fail, and the same is dismissed. ( Sham Sunder ) Judge July 08, 2009 dinesh