C.R.No.7571 of 2009 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.7571 of 2009 Date of decision: 11.3.2011 Ranjit Singh and others ….Petitioners Vs. Bihara Singh and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Pankaj Sharma, Advocate for the petitioners. Mr. Manpreet Singh, Advocate for respondent Nos.1 & 2. Jaswant Singh, J Defendant Nos.1 to 3-petitioners have preferred the instant petition under Article 227 of the Constitution praying for setting aside the impugned order dated 30.10.2009 (P.2) passed by the learned Civil Judge (Sr. Division), Ropar whereby application filed by the plaintiffs-respondent Nos.1 & 2 for permission to withdraw the civil suit filed by them has been allowed and they have been granted liberty to file fresh suit. Facts of the case are that plaintiffs-respondent Nos.1 & 2 filed a civil suit No.160 dated 22.5.2006 for declaration to the effect that they are owner in possession in equal share of the property belonging to Dalbara Singh son of Mangal Singh as described in the head note of the plaint. Upon notice, the suit was resisted by the defendants-petitioners by filing a written statement. During the pendency of the suit, an application for permission to withdraw the suit was filed by the plaintiffs-respondents. Upon notice, the same was opposed by the defendant No.1 to 3-petitioners. C.R.No.7571 of 2009 #2# After hearing both the sides, the learned trial Court has allowed the application vide its impugned order subject to payment of costs of Rs.200/- and the plaintiffs were allowed to withdraw the suit with permission to file fresh suit, hence the present petition. Heard learned counsel for the petitioners and perused the paper book. It is argued by learned counsel for the petitioners that on earlier occasions also, an application under Order 6 Rule 17 CPC for amendment of plaint was filed by the plaintiffs-respondents but the same was dismissed by the learned trial Court vide order dated 5.3.2009 (P.1). It is further submitted that by way of seeking withdrawal of the civil suit with liberty to file fresh suit would virtually negate the order dated 5.3.2009 vide which the plea of plaintiff-respondent Nos.1 to 3 regarding the challenge of will dated 21.2.2000 and mutation No.1476 dated 8.8.2006 by way of proposed amendment was declined by the learned trial Court and in case, the impugned order is sustained, that will virtually amount to setting aside the order dated 5.3.2009 (P.1). On the other hand, learned counsel for the plaintiffs-respondent Nos.1 & 2 defended the impugned order dated 30.10.2009 emphatically and relied on a judgment of this Court reported as Pritam Singh v. Bachan Singh, 1998 (3) RCR (Civil) 344 and Amar Singh v. Kashmiri Lal 2009 (2) RCR (Civil) 173. It is not in dispute that an application under Order 6 Rule 17 CPC for amendment of plaint filed by the plaintiffs-respondent Nos.1 to 3 was dismissed by the learned trial Court vide order dated 5.3.2009 (P.1). It is also apparent from the order dated 5.3.2009 that the very basis for filing C.R.No.7571 of 2009 #3# the application for amendment of plaint was that when the evidence of defendants was led then only the plaintiffs came to know about the alleged will dated 21.2.2000 and mutation No.1476 dated 8.8.2006 but the proposed amendment was opposed by the defendants-petitioners by raising a plea that the plaintiffs-respondents were fully aware of the will in question as well as the mutation No.1476 and after considering rival contentions of the parties, the said application for amendment was dismissed by the learned trial Court vide order dated 5.3.2009 (P.1). It is not in dispute that DW1 Major Singh filed his affidavit in the form of examination in chief and produced the copy of alleged mutation No.1476, which was sanctioned on the basis of will dated 21.2.2000 and said witness is yet to be cross examined. In case, the plaintiff-respondents are not permitted to challenge the said will and mutation by allowing to withdraw the suit with liberty to file fresh one then there shall be a technical defect in the suit and that will destroy the whole case. Concededly, the suit is for declaration to the effect that the plaintiffs are owner in possession in equal shares of the property of Dalbara Singh son of Mangal Singh as described in the head note of the plaint, however, the defendants are resisting the claim of the plaintiffs on the ground that Dalbara Singh son of Mangal Singh remained unmarried and died issueless and he executed the alleged Will dated 21.2.2000 and on the basis of said Will, mutation No.1476 was sanctioned. In case, these facts are not pleaded in the plaint and the said Will as well as mutation are not challenged, then there will be an inherent technical defect in the suit and the suit of the plaintiffs- respondents may fail for this reason only. In my opinion, the learned trial Court has rightly observed that in the interest of justice, the technicality C.R.No.7571 of 2009 #4# should not become stumbling block and rightly permitted the plaintiffs- respondents to withdraw the suit with liberty to file fresh one by passing the impugned order dated 30.10.2009 as no prejudice will be caused to the defendants-petitioners and they will be having full opportunity to oppose the fresh suit if instituted by the plaintiff-respondent Nos.1 to 3. In Pritam Singh's case (supra) also, this Court has held that the provisions of Order 6 Rule 17 CPC have to be read as not to make Order 23 Rule 1 CPC as redundant and the Court has jurisdiction to grant permission to withdraw the suit with liberty to file 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. Similarly, in Amar Singh's case (supra) also, this Court has held that in view of the provisions of Order 23 Rule 1 CPC, the Court can allow the parties to withdraw the suit at any stage of proceedings when the suit was likely to fail for reasons of some formal defect. Keeping in view the facts and circumstances discussed hereinabove and in view of both the judgments referred above, this Court finds no illegality or perversity in the impugned order dated 30.10.2009 (P.2) passed by the learned Civil Judge (Sr. Division), Ropar warranting interference under Article 227 of the Constitution. Dismissed. March 11, 2011 ( JASWANT SINGH ) manoj JUDGE