Civil Revision No.1512 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No.1512 of 2011 (O&M) Date of decision: 28.4.2011 Som Nath @ Soma ......petitioner Versus Beera .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.S.Rangi, Advocate for the petitioner. Mr.Dhirender Chopra, Advocate for the respondent. **** SABINA, J. The plaintiff-petitioner had filed a suit for permanent injunction restraining the defendant from interfering in his peaceful possession qua the property marked ABCD in the site plan. The plaintiff had moved an application for permission to withdraw the suit. Vide the impugned order dated 22.2.2011, the said application has been dismissed and the case has been adjourned for rebuttal evidence, if any, and arguments. Hence, the present petition by the plaintiff. Learned counsel for the petitioner has submitted that the petitioner had moved an application for permission to withdraw the suit without seeking any further relief. The trial Court had erred in Civil Revision No.1512 of 2011 (O&M) 2 dismissing the application filed by the plaintiff for permission to withdraw the suit. Learned counsel for the respondent, on the other hand, has submitted that the suit was fixed for rebuttal evidence, if any, of the plaintiff and at that stage, the application for permission to withdraw the suit was liable to be dismissed. Moreover, the petitioner had already filed another suit seeking same relief. After hearing the learned counsel for the parties, I am of the opinion that the present petition deserves to be dismissed. Order 23 Rule 1 of the Code of Civil Procedure reads as under:- “ 1.Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (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 the pleader to the effect that the abandonment proposed is, in his opinion, for 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 other sufficient grounds for allowing the plaintiff to Civil Revision No.1512 of 2011 (O&M) 3 institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a 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 of such subject-matter or 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”. Thus, as per the above provision, the plaintiff at any stage can withdraw the suit. A perusal of the application moved by the plaintiff-petitioner for permission to withdraw the suit (Annexure P-3) reveals that the plaintiff has filed the application simpliciter for Civil Revision No.1512 of 2011 (O&M) 4 permission to withdraw the suit and had not sought permission to file a fresh suit on the same cause of action. In these circumstances, the application filed by the plaintiff for permission to withdraw the suit was liable to be allowed. In case, the plaintiff-petitioner has already filed another suit on the same cause of action, the defendant would be at liberty to raise all the pleas available to him as per law in the said suit. Accordingly, this application is allowed. The impugned order dated 22.2.2011 passed by the trial Court is set aside. Consequently, the suit of the plaintiff is dismissed as withdrawn. (SABINA) JUDGE April 28, 2011 anita