C.R. No. 6658 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 6658 of 2009 Date of Decision: November 16, 2009 Yogesh Chopra …..Petitioner Vs. Urmala Rani and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. R.K. Singla, Advocate for the petitioner. -.- M.M.S. BEDI, J. (ORAL) Plaintiff- respondent No.1 is the mother of defendant- petitioner. She had field a suit for separate possession by way of partition of property in dispute. Vide impugned order she has been permitted to withdraw the suit with liberty to file a fresh suit observing that the plaintiff has claimed that there are some technical defects in the suit. The trial Court observed that though the plaintiff had failed to mention the defect but she was C.R. No. 6658 of 2009 [2] permitted to withdraw the suit with permission to file the fresh suit on the same subject matter and upon the same cause of action subject to payment of Rs.500/-. Sh.R.K. Singla, counsel for the petitioner has contended that the withdrawal of the suit is malafide because vide order dated October 12, 2009, counsel for the plaintiff had made a statement in the Court that he would conclude the entire plaintiff’s evidence on the following date of hearing otherwise, the evidence of the plaintiff will be closed. Last opportunity was given to the plaintiff- respondent to conclude the evidence on October 24, 2009 but on October 24, 2009, when the evidence of the plaintiff- respondent No.1 was to be closed for default of producing evidence, an application was filed for withdrawal of the suit on the basis of some technical defect. Counsel claims that the defendant had been unnecessarily harassed by the plaintiff and that when the opportunity had arrived for getting the suit dismissed, the suit has been withdrawn seeking permission to file a suit fresh on the same subject matter and on the same cause of action. He has placed reliance on Shri Ram Lubhaya Vs. Shri Kanshi Ram, 1977 (2) PLR 184 wherein without disclosing in the order of withdrawal of suit with liberty to file fresh one, it was not mentioned as to what those defects were as such the order of Subordinate Judge was set aside and a direction was given to the Subordinate Judge to reconsider the matter and apply his mind to the provisions of Order 23 Rule 1 CPC and the Court was required to make a note of it if there were any formal defects which would entail the dismissal of the suit, the Court should mention the C.R. No. 6658 of 2009 [3] said defects in the order. He also placed reliance on Chhindo Vs. Mela Singh, (1967) 2 ILR (P&H) 6, wherein it was observed that the Courts are expected to pass speaking orders, as the withdrawal of suit with liberty to file fresh is a serious matter demanding exercise of judicial discretion in the light of all the attending circumstances and it has not to be dealt with casually. I have heard counsel for the petitioner and gone through the nature of the case and the judgments cited by him. There is no dispute regarding the law that the objective satisfaction of the Court indicating the reason for passing the order and judicious application of mind should be reflected in every judicial order. The Court has clearly expressed the reasons for permitting the suit to be withdrawn with liberty to file fresh one. The discretion has been exercised subject to payment of costs to compensate the defendant for the unnecessary harassment having been caused by filing a suit which suffers from technical defect. The cost apparently is a very meager amount, if seen in context to number of years i.e. six year spent in Courts but it is not open to this Court to re-determine the cost which has been allowed by the trial Court. I have gone through the plaint of the plaintiff- respondent N.1, annexure P-1. The plaintiff- respondent has claimed in the suit that after the death of her husband she alongwith defendant and others became joint owner in possession of the property in dispute. So far as cause of action is concerned, she has mentioned that a week prior to the date of filing of the suit, the defendant –petitioner had refused to accept the request. It is a C.R. No. 6658 of 2009 [4] settled principle of law that a person can file a fresh suit if it if based upon fresh cause of action. In case the plaintiff files a fresh suit after removing the technical defect, it will be open to the petitioner to contest the same. It is a settled principle of law that when a suit is withdrawn without leave, the bar to bring fresh suit in respect of the same subject matter applies. The rule is imperative, but for a suit to be barred, the identity of the parties and identity of cause of action must be established. Even if the plaintiff- respondent mother of the defendant- petitioner gets a fresh cause of action for filing a suit for separate possession, she cannot be debarred. The impugned order only implies that if she files the suit on the same cause of action she will be permitted to do so on payment of Rs.500/- as costs. The petitioner is son of plaintiff- respondent No.1. He should be thankful to the plaintiff- respondent for having withdrawn the litigation against him. His rights have not been prejudiced in any manner with the withdrawal of the suit. I have read the written statement filed by the petitioner to the amended plaint wherein he has taken up the plea that suit is bad for non- joinder and misjoinder of necessary parties. The defect of mis-joinder is a formal defect whereas defect of non-joinder of necessary party is not a formal defect but a material defect. Mis-joinder is certainly a formal defect in view of the preliminary objection No.6 of the written statement of defendant- petitioner wherein non-joinder has been pleaded as a legal defect, it does not lie in the mouth of defendant- petitioner to claim that there is no formal defect. C.R. No. 6658 of 2009 [5] In view of above circumstances, in order to cut-short the litigation between mother and son, it is not necessary to call the old mother in the High Court merely to cause harassment to her. In view of the totality of above circumstances and in the interest of harmony between the mother and son, no ground is made out for interference in the impugned order in the exercise of jurisdiction under Article 227 of the Constitution of India. Dismissed. November 16, 2009 (M.M.S.BEDI) sanjay JUDGE