CR – 172/2008 -Surendra Singh Vs. Vijai singh Judgment dt.2.4.09 1/5 S.B. CIVIL REVISION PETITION NO.172/2008 Surendra Singh Vs. Vijai singh. Date of order : 2nd April, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. S.L. Jain for the petitioner. None present for the respondent. ----- 1. Heard learned counsel for the petitioner. None present for the respondent despite service. 2. This revision petition is directed against the order dated 14.12.2004 passed by the learned trial court allowing the application of the plaintiff to withdraw the suit under Order 23 Rule 1 C.P.C. however, refusing the leave to file fresh suit though prayed for. 3. Being aggrieved of the said part of the order, the plaintiff approached this Court. The learned counsel for the plaintiff- petitioner submits that the Court could not split the prayer and refuse the permission to file fresh suit inasmuch as the present suit for specific performance was filed for seeking specific performance of an agreement under which the land in question was agreed to be sold by the defendant to the plaintiff. He submitted that the said land was in fact earlier sold by the plaintiff himself by registered sale deed dated 18.6.1997 with further stipulation that after a certain period the said CR – 172/2008 -Surendra Singh Vs. Vijai singh Judgment dt.2.4.09 2/5 land in question will be sold back by the defendant to the plaintiff. However, upon his refusal to sell back the said land to the plaintiff, the present suit for specific performance was filed by the plaintiff. 4. Learned counsel further submitted that since part of land was acquired by the National Highway Authority and he obtained compensation also for the same, for rest part of the land he intended to file fresh suit and, therefore, in these circumstances, the application for withdrawal of the suit for the whole of the land seeking liberty to file fresh suit for rest part of the land was filed by the plaintiff which was though allowed by the learned trial court, however, the leave to file fresh suit was not granted. Aggrieved by this portion of the order, this revision petition has been filed. 5. Learned counsel for the petitioner, Mr. S.L. Jain relied upon the decision of Himachal Pradesh High Court in the case of Hans Raj Akrot Vs. State of Himachal Pradesh – AIR 1989 Himachal Pradesh 43 in which the Himachal Pradesh High Court held in para 5 of the judgment as under:- “5. It is settled that where a plaintiff makes a prayer for withdrawal of the suit with liberty to file a fresh suit in respect of the subject matter of the suit, the court can permit the withdrawal of the suit coupled with the liberty to file a fresh suit. It cannot refuse that liberty to the CR – 172/2008 -Surendra Singh Vs. Vijai singh Judgment dt.2.4.09 3/5 plaintiff on its own. If the Court feels that, in the circumstances, brought before it, permission to withdraw the suit should not be granted, it can refuse the prayer by rejecting the application. It is not open to the court to split up the prayer made by the plaintiff by allowing the withdrawal of the suit and refusing the liberty to institute a fresh suit in respect of the same subject matter (see Wazir Hidayat Shah Shrida, AIR 1967 Punjab 405, Devidas Tulsiram Brijwani v. Commr., Poona Municipal Corpn., AIR 1974 Bom 39 and Radha Krishna v. State of Rajasthan, AIR 1977 Rajasthan 131 (DB).” 6. He also relied upon the decision of Bombay High Court in case of Mario Shah V. Martin Fernandez & Anr. - AIR 1996 Bombay 116 in which judgment, the Court in para 6 of the judgment held as under:- “6. There is one more reason for rejecting the petitioner's contention. Admittedly, the application made by the respondents before the Co-operative Court was for withdrawal of the dispute with a liberty to file fresh proceedings. If that is so, the Co-operative Court was clearly in error in passing an order of withdrawal without granting permission to initiate fresh proceedings. It is well settled and if an application is made for withdrawal of the suit with liberty to file a suit, it is not open for the Court to grant only permission for withdrawal without liberty to institute the CR – 172/2008 -Surendra Singh Vs. Vijai singh Judgment dt.2.4.09 4/5 proceedings, though it is open for the Court to reject such application. Thus I do not find any merit in this petition and the same is dismissed summarily.” 7. Having heard learned counsel and upon perusal of the impugned order and application filed by the plaintiff seeking withdrawal of the suit and provisions of Order 23 Rule 1 C.P.C., this Court is satisfied that the learned trial court has erred in not granting the leave to file fresh suit in respect of the part of the land in the circumstances narrated above. The judgments relied upon by the learned counsel for the petitioner fully support the contention of the learned counsel that the prayer of the plaintiff could not be split by the learned trial court and while allowing the withdrawal of the suit the leave to file fresh suit could not be refused without assigning any proper reason for the same. No such reason has been assigned by the learned trial court in the impugned order, nor there appears to be any apparent reason standing in the way of the plaintiff to file such fresh suit in respect of the part of the land against the defendant. 8. Consequently, this revision petition is allowed and the impugned order dated 14.12.2004 passed by the learned trial court is set aside to the extent it refused the leave to the plaintiff petitioner to file fresh suit in the matter. The order impugned shall stand modified to this extent. No costs. CR – 172/2008 -Surendra Singh Vs. Vijai singh Judgment dt.2.4.09 5/5 [ DR. VINEET KOTHARI ], J. itemNo.4 babulal