RSA No.3603 of 2005 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3603 of 2005 (O & M) Date of Decision: 29.03.2010 Gurdip Singh and others .……Appellants Versus Mahabir Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. S. C. Chhabra, Advocate for the appellants. Mr. B. R. Mahajan, Advocate for the respondents. L. N. MITTAL, J (ORAL) Plaintiffs have filed the instant second appeal having remained unsuccessful in both the Courts below. Plaintiffs filed suit for permanent injunction restraining the defendants from alienating the suit land in any manner until partition and from dispossessing the plaintiffs from the suit land forcibly and from raising any construction thereon. Learned lower appellate Court inter alia observed that suit for permanent injunction alone is not maintainable as the plaintiffs have not sought necessary declaration regarding correctness of allotment of plot No.230/1 (out of 3 disputed plots) in favour of defendants' father Baghel Singh. Faced with the aforesaid situation, appellants have moved CM No.11726-C of 2009 under Order 23 Rule 1(3) of the Code of Civil Procedure (in short, C.P.C) for permission to withdraw the suit with liberty to file fresh suit regarding the suit property RSA No.3603 of 2005 (O & M) -2- alleging that there is formal defect in the suit inasmuch as suit has been filed for permanent injunction only without claiming relief of declaration and other appropriate relief. The application has been opposed by respondents. I have heard learned counsel for the parties and perused the case file. As noticed hereinabove, the suit has been filed for permanent injunction only. However, the lower appellate Court has observed that suit for permanent injunction only is not maintainable and the plaintiffs should have sought declaration also. Thus a defect in the form of the suit which can be called formal defect within the purview of Order 23 Rule 1(3)(a) C.P.C, has been found by the lower appellate Court. Consequently, the plaintiffs are entitled to withdraw the instant suit with liberty to file fresh suit. Learned counsel for the respondents contended that the plaintiffs had earlier filed another suit for permanent injunction which was dismissed in default and now the instant second suit has been adjudicated upon by the trial Court and lower appellate Court and, therefore, plaintiffs should not be permitted to withdraw the suit with liberty to file fresh one because the defendants have already suffered the agony and expenses of contesting the litigation. However, this grievance of the respondents can be redressed by imposing suitable costs on the plaintiffs. Learned counsel for the appellants has relied on a judgment of Hon'ble Supreme Court in the case of Anathula Sudhakar versus P. Buchi Reddy (Dead) By LRs and others, RSA No.3603 of 2005 (O & M) -3- 2008(2) RCR (Civil) 879. In that case also, suit was filed for injunction only without seeking declaration of title. Hon'ble Apex Court observed that in such a case, the plaintiffs should have amended the plaint and converted the suit into suit for declaration or alternatively they could withdraw the suit with permission to file comprehensive suit for declaration and injunction. Hon'ble Apex Court even observed that plaintiffs may file the suit for declaration with consequential relief even after suit for injunction is dismissed where the suit raised only the issue of possession and not any issue of title. In view of this judgment of Hon'ble Apex Court, in the instant case, the plaintiffs should be granted necessary permission to withdraw the instant suit with liberty to file a fresh suit regarding the suit property, subject to payment of costs. Learned counsel for the respondents relied on a judgment of Hon'ble Apex Court in the case of R. Rathinavel Chettiar versus V. Sivaraman, 1999(2) PLR 459 and a judgment of this Court in the case of Darshan Singh versus Kartar Singh and others, 2007 (1) RCR (Civil) 543. However, both these judgments relate to simple withdrawl of the suit at appellate stage. It was held that the plaintiff could not permitted to withdraw the suit at appellate stage. However, in those cases, the question of withdrawl of suit with liberty to file fresh suit was not involved nor adjudicated upon. These judgments have no applicability to the instant case. For the reasons recorded hereinabove, CM No.11726-C of 2009 filed by the appellants is allowed and the plaintiffs/appellants are permitted to withdraw the suit with liberty to file fresh one relating RSA No.3603 of 2005 (O & M) -4- to the suit property on payment of Rs.25,000/- as costs precedent. Consequently, judgments and decrees of both the Courts below are set aside and appeal stands disposed of accordingly. ( L. N. MITTAL ) JUDGE 29.03.2010. A. Kaundal