IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4247 of 2010(O&M) Date of Decision: October 31, 2011. Vinod Kumar. ...... PETITIONER(s) Versus Gurmail Singh and another. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Surinder Garg, Advocate for the petitioner. Mr. N.S.Dhandiwal, Advocate for respondent no.1. ***** RAM CHAND GUPTA, J.(Oral) Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 30.03.2010 passed by learned Civil Judge(Junior Division), CR No.4247 of 2010 Bathinda vide which request of petitioner-plaintiff to withdraw the present suit with liberty to file another suit on the same cause of action under Order 23 Rule 1 of Code of Civil Procedure (for short, the ‘CPC’), was declined. I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court. Brief facts relevant for the decision of the present revision petition are that, present petitioner-plaintiff filed a suit for declaration to the effect that he is owner in possession of the property in dispute which was purchased by him vide registered sale deed bearing no.2112 dated 08.06.2001 and that order dated 24.10.2005 by the Collector, Sub Division, Bathinda regarding mutation no.2453 is illegal and void and that no street exists in the property in dispute with a consequential relief of permanent injunction restraining respondent-defendant no.1 from illegally and forcibly interfering in possession of the petitioner-plaintiff over the property in dispute. On notice being issued, suit was contested by respondent-defendant by taking the plea that vendor of petitioner-plaintiff was not owner of the land in dispute. Plea was also taken that neither vendor of the petitioner-plaintiff nor petitioner-plaintiff is in possession of the land in dispute and that rather street is in existence at the spot which is being used by respondents-defendants to approach their respective houses and that mutation was rightly challenged by respondents-defendants before the Collector, Sub Division, Bathinda, who had rightly set aside the mutation by passing the impugned order. An 2 CR No.4247 of 2010 application for amendment of plaint was earlier filed by the petitioner- plaintiff under Order 6 Rule 17 CPC seeking relief of possession as well and however, the prayer was declined by learned trial Court. Revision petition filed by petitioner-plaintiff against the said order was also dismissed by this Court. Thereafter, the present application was filed by him to withdraw the the suit with liberty to file a fresh suit on the same cause of action under Order 23 Rule 1 read with Section 151 CPC, which was contested by respondents-defendants and however, the request of petitioner-plaintiff was declined by the trial Court vide impugned order. It has been contended by learned counsel for the petitioner- plaintiff that Order 6 Rule 17 CPC for amendment of the plaint and Order 23 Rule 1 CPC for withdrawing the suit are different and specific provisions under the Code of Civil Procedure and that even if prayer of petitioner- plaintiff for amendment of plaint seeking relief of possession under Order 6 Rule 17 CPC was declined, petitioner-plaintiff is still having right to pray for withdrawal of the present suit with liberty to file another one with the same cause of action under Order 23 Rule 1 CPC so as to claim possession. It is further contended that it was due to negligence on behalf of the counsel for plaintiff that initially relief for possession was not sought in the suit whereas petitioner-plaintiff was never in possession of the property in dispute and that rather the same was illegally possessed by respondents-defendants. Hence, it is contended that suit for mere declaration is not maintainable without seeking relief of possession, which was available to petitioner on the date of 3 CR No.4247 of 2010 filing of the suit and hence, it is contended that as it is a formal defect, learned trial Court has committed illegality in declining the request of petitioner-plaintiff to withdraw the present suit with liberty to file another one on the same cause of action. On the other hand, it has been argued by learned counsel for the respondent-defendant no.1 that application of petitioner-plaintiff is not a bona fide one and that the same was filed at much belated stage i.e. after his request for amendment of plaint was declined by learned trial Court and that revision against the said order was also dismissed by this Court. Law on the point is well settled that when there is a formal defect in the suit may be on account of negligence on behalf of the counsel for the plaintiff, suit can be allowed to be withdrawn with liberty to file fresh one on the same cause of action. On the point, learned counsel for the petitioner has placed reliance upon Kanhiya Lal and others v. Nathu and others, 1990 Civil Court Cases 47(P&H), wherein as well suit was filed for mere declaration without claiming relief of possession and hence, it was observed that error of not claiming a proper relief is a formal defect in the suit which can be remedied either by way of amendment or by withdrawing the suit with permission to file a fresh suit on the same cause of action. The relevant paragraph reads as under:- “11. In my considered view and in view of the facts admitted at the Bar, that the suit in the present form was not maintainable being a simpliciter suit for injunction and declaration inasmuch as the defendants-petitioners are in possession of the premises in 4 CR No.4247 of 2010 dispute, because of the necessary relief having not been claimed, the suit is liable to be dismissed without going for trial on merits, there is no doubt that the error of not claiming a proper relief is a formal defect in the suit which can be remedied either by way of amendment or by withdrawing the suit with a permission to file a fresh suit on the same cause of action. The trial Court, keeping the facts and circumstances of the case in view in particular that the suit being still at the trial stage and the rights of the parties having not been crystalised yet, rightly granted the permission to withdraw the suit. No error in exercise of jurisdiction has been pointed out.” Learned counsel for the petitioner has further placed reliance upon Amar Singh v. Kashmiri Lal, 2009 RCR(Civil) 173, wherein it has been observed by this Court that court can allow a party to withdraw the suit at any stage of proceedings when the suit was likely to fail for reasons of some formal defect. The relevant paragraph reads as under:- “17. The provisions of Order 23 Rule 1 of the Code show that the court can allow a party to withdraw the suit at any stage of proceedings when the suit was likely to fail for reasons of some formal defect and also on the ground that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the subject-matter of the suit or part of claim.” In another judgment rendered by this Court in Pritam Singh v. Bachan Singh, 1998(3) Civil Court Cases 599(P&H), it has been observed that wherein suit was filed for mere declaration and even entire evidence of plaintiff was concluded and thereafter, permission was sought for withdrawal 5 CR No.4247 of 2010 of the suit with permission to file fresh suit on the same cause of action and however, the permission was granted. The relevant paragraphs read as under:- “4. After hearing learned counsel for the parties, I am of the opinion that the contention of the learned counsel has no merit. This court in Kanhyia Lal and another v. Nathu and others, 1989 (2) PLR 449 held that the provisions of Order 6 Rule 17 of the Code have to be read as not to make Order 23 Rule 1 redundant. If the sweeping contention of the petitioners to the effect that where a suit can be amended, the permission to withdraw the suit cannot be granted, is accepted, it would render Order 23 Rule 1 of the Code of Civil Procedure obsolete. The Court has jurisdiction to grant permission to withdraw the suit with liberty to file a fresh one on the same cause of action where it is satisfied that the formal defect pointed out by the parties may result in dismissal of the suit. It was further held that the court can also grant permission to withdraw the suit for other sufficient grounds where justice and equity demand. In the reported case, the plaintiffs had filed a suit for mandatory injunction based on title. The defendants contended that the suit for injunction and declaration simplicitor was not maintainable as they are not in possession of the premises. Since the relief of possession had not been claimed, the application was moved to withdraw the suit with liberty to file a fresh one on the same cause of action. The permission was granted. 5. The facts in the case in hand are precisely the same as in the reported case. The petitioner as already noticed only filed a suit for declaration and did not claim possession. They sought permission to withdraw the suit in order to claim the relief of possession which was granted. No injustice or prejudice has 6 CR No.4247 of 2010 resulted to the petitioners by the impugned order. In that view of the matter, the revision petition has no merit and the same is consequently dismissed. There shall, however, be no order as to costs.” It is pertinent to reproduce Rule 1 of Order 23 of the CPC, which reads as under:- “ ORDER XXIII Withdrawal and Adjustment of Suits 1. Withdrawal of suit or abandonment of apart of claim.- (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit not any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub- rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of a pleader to the effect that the abandonment proposed is, in his opinion, of the benefit of the minor or such other person. (3) Where the Court is satisfied, - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, 7 CR No.4247 of 2010 it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff – (a) abandons any suit or part of claim under sub- rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect or such subject-matter of such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” A bare perusal of above-said provision shows that court can allow the plaintiff to withdraw the suit when such suit is likely to fail by reason of some formal defect. In the present case, admittedly petitioner- plaintiff is not in possession of the property in dispute. He filed suit seeking relief of mere declaration without seeking relief of possession. Hence, the suit is not maintainable as no declaratory decree can be passed without claiming relief of possession if the same is available to the plaintiff on the date of filing of the suit. Merely on the ground that petitioner-plaintiff was 8 CR No.4247 of 2010 negligent in not claiming relief of possession initially and in view of the fact that present application has been filed after dismissal of the application filed by the petitioner-plaintiff for amendment of the plaint under Order 6 Rule 17 CPC, it cannot be said that his prayer under Order 23 Rule 1 CPC to withdraw the present suit with liberty to file another one on the same cause of action is to be declined. Rather the other party can be compensated by way of cost in view of the gross negligent conduct on behalf of the petitioner- plaintiff in not claiming the relief of possession initially. Hence, in my view, learned trial Court has committed illegality in declining the request of petitioner plaintiff to withdraw the suit with liberty to file another suit on the same cause of action. Hence, in view of the aforementioned facts, the present revision petition is accepted and the impugned order is set aside. As a consequence thereof, application filed by the petitioner-plaintiff to withdraw the present suit with liberty file another one on the same cause of action under Order 23 Rule 1 CPC is accepted. However, petitioner-plaintiff is burdened with cost of `10,000/-, which shall be a condition precedent. ( RAM CHAND GUPTA ) October 31, 2011. JUDGE 'om’ 9