C. R. No. 1864 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 1864 of 2010 Date of Decision : October 27, 2010 Santosh Rani and another .... Petitioners Vs. Kasturi Lal and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arun Singal, Advocate for the petitioners. Mr. Ashish Gupta, Advocate for Mr. Vikram Singh, Advocate for respondent no.1. * * * L. N. MITTAL, J. (Oral) : Defendants no.2 and 3 have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 08.01.2010 (Annexure P-3) passed by learned Civil Judge (Junior Division), Panipat, thereby allowing application Annexure P-2 moved by respondent no.1-plaintiff for permission to withdraw the suit, with liberty to file fresh suit on the same cause of action. Plaintiff-respondent no.1 alleged in application Annexure P-2 C. R. No. 1864 of 2010 2 that his application for permitting him to file the suit as indigent person was pending decision in the trial court. However, due to technical defect, the plaintiff did not want to proceed with the suit and wanted to file fresh suit as indigent person. The said application has been allowed by trial court by impugned order Annexure P-3. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that no technical or formal defect in the suit was mentioned in application Annexure P-2 and therefore, impugned order of the trial court is patently illegal. On the other hand, learned counsel for respondent no.1-plaintiff contended that there was formal defect in the suit regarding non-payment of court fee and therefore, the impugned order is fully justified and legal. Reliance in support of this contention has been placed on judgment of Orissa High Court in the case of Atul Krushna Roy vs. Raukishore Mohanty and others reported as A. I. R. 1956 Orissa 77. I have carefully considered the rival contentions. In application Annexure P-2 moved by the plaintiff for permission to withdraw the suit with liberty to file fresh suit on the same cause of action, plaintiff- respondent no.1 did not specify any formal or technical defect in the suit so as to grant him the said liberty. It was simply mentioned that due to C. R. No. 1864 of 2010 3 technical mistake in the plaint, the plaintiff did not want to proceed with the suit and wanted to file fresh suit as indigent person. However, the alleged technical defect in the plaint was nowhere specified in the application. The trial court observed in the impugned order that defect regarding non- payment of proper court fee can be said to be formal defect. No such formal defect was even pleaded by plaintiff-respondent no.1 in his application Annexure P-2. In addition to it, there was no formal defect in the suit regarding non-payment court fee at the time of passing of impugned order by trial court because application moved by the plaintiff for permitting him to file suit as indigent person was yet to be decided by the trial court. Even otherwise, for non-payment of proper court fee, the appropriate order would be of rejection of the plaint and not of permitting the plaintiff to withdraw the suit, with liberty to file fresh suit. Even otherwise, the plaintiff intended to file fresh suit also as indigent person. Consequently, the question of defect of non-payment of court fee could not be there as the fresh suit was also to be filed by the plaintiff as indigent person. From the aforesaid discussion, it is manifest that impugned order of the trial court is manifestly perverse and illegal and suffers from jurisdictional error. The revision petition is accordingly allowed and impugned order Annexure P-3 passed by the trial court is set aside and application Annexure P-2 moved by the plaintiff is dismissed. The trial court shall now proceed with the suit in accordance with law from the stage C. R. No. 1864 of 2010 4 at which application Annexure P-2 was moved. Parties are directed to appear before the trial court on 29.11.2010. October 27, 2010 ( L. N. MITTAL ) monika JUDGE