IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR NO.3929/2008 Date of Decision:23.4.2009. Chamba Singh ..........Petitioner. Versus Surinder Singh and others ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.Ashu Kaushik,Advocate for Mr.Ranjan Lakhanpal,Advocate for the petitioner. None for respondents 1 to 4. JASWANT SINGH,J Chamba Singh-petitioner-plaintiff has filed the present revision petition under Article 227 of the Constitution of India for setting aside the order dated 29.4.2008 passed by learned Civil Judge (Junior Division) Ferozepur whereby his application under Order 23 Rule 1 CPC for withdrawing the suit filed by him against respondents-defendants, with permission to file a fresh one, has been dismissed. Despite service no one has put in appearance on behalf of the respondents. Hence they are proceeded against ex parte. Heard learned counsel for the petitioner-plaintiff and perused the record. A perusal of the paper book reveals that plaintiff instituted a suit on 21.12.2006 for mandatory injunction directing the respondents-defendants to demolish the wall shown in the site plan which was allegedly constructed CR NO.3929/2008 2 by them after committing the breach of the terms and conditions of the compromise deed dated 16th of November 2005. Petitioner-plaintiff had also made a prayer for compensation on account of harassment, mental agony etc.etc. The application dated 3.1.2008, under Order 23 Rule 1 was moved by the petitioner-plaintiff seeking leave of the Court to withdraw the said suit with permission to file a fresh one on the same cause of action. In the said application it was alleged that originally the suit was filed through another counsel, “but on going through the contents of the present plaint, the plaintiff has come to know that whatever was told by the plaintiff to his counsel has not been mentioned in the present case, rather a number of other mistakes have been committed.” To be more specific, in para 4 of the application under Order 23 Rule 1 CPC, it was alleged that in “para number 6 of the suit, it was mentioned by the counsel for the plaintiff that the compromise was effected on 2nd of December 1999 and secondly on 16th of November,2005. So far as the compromise deed dated 2nd of December 1999 is concerned, the same is correct. However, so far as the compromise dated 16th of November 2005 is concerned, the same is procured by the defendants with a malafide intention....” In para 6 of the application, the plaintiff-petitioner alleged that his counsel wrongly mentioned in “para 7 of the plaint that the defendants have committed breach of compromise dated 16th November,2005. When the plaintiff does not admit the correctness of the compromise deed dated 16th November,2005, there was also no necessity to mention the said facts.....” It was alleged by the plaintiff-petitioner that he does not know English language CR NO.3929/2008 3 and his counsel had told him that the plaint has been drafted as per his instructions. Upon notice, respondents-defendants contested the application and denied the fact that the plaint suffers from any technical defect. It was also stated that the plaint was supported by a duly sworn affidavit of petitioner- plaintiff who is an educated person litigating in different Courts for the last 40 years. It is also stated that the plaintiff has already filed another application for withdrawing the compromise and that application is still pending. It is also the case of the respondents defendants that on the basis of compromise dated 16.11.2005 (incorporation of which is disputed in the plaint filed in the present suit) another suit titled as “Tejinder Singh vs. Chamba Singh” was decided by the Lok Adalat on 26.11.2005 and that petitioner has even raised objection to that order of the Lok Adalat. A perusal of the contents of the application, noticed above, reveals that petitioner has not been able to make out a case for seeking leave of the Court so as to withdraw the present suit with permission to file a fresh one. It is not understandable as to how petitioner's counsel came to know about the factum of compromise deed dated 16.11.2005 and incorporate the same in the plaint, unless he was instructed to do so. Moreover, as disclosed by the defendants the plaintiff has already got another civil suit titled “Tejinder Singh vs. Chamba Singh” decided by Lok Adalat on 26.11.2005 on the basis of compromise deed dated 16.11.2005 whereas in the present application, taking a somersault, he has termed the said compromise to be a result of fraud after making out a case in the present suit solely on the basis of the compromise CR NO.3929/2008 4 deed dated 16.11.2005. There is another factor which rightly weighed with the learned trial Court. The petitioner filed the suit on 21.12.2006 whereas the present application was filed almost after two years i.e. on 3.1.2008 on flimsy grounds that he does not know English language and he signed the plaint as well as affidavit on the understanding given by his counsel that he had prepared the same as per his instructions. It is also not the case of the petitioner that for the professional misconduct on the part of his counsel he has taken any action against him. There is not even a mention in the application under Order 23 Rule 1 as to who pointed out the defects to the plaintiff. It is quite settled that Court while exercising discretion to grant withdrawal of the suit with permission to file a fresh one has to exercise great caution and circumspection by examining the aspects of the case including desirability or otherwise of permitting a fresh round litigation on a cause of action which has already been agitated. Reliance in this regard can be placed upon the law laid down by the Hon'ble Supreme Court in K.S.Bhoopathy and others v. Kokila and others, (2000) 5 SCC 458. For the reasons stated above,I find no merit in present revision petition. Dismissed. 23.4.2009. (Jaswant Singh) joshi Judge