IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 82 of 2009 (O&M) Date of decision : May 06, 2009 Bhoop Singh Applicant Versus Pyare Lal Respondent CORAM : HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Sanjay Vij, Advocate for the applicant Mr. C.B. Goel, Advocate and Mr. Nitin Jain, Advocate for the respondent A.N. JINDAL, J. (ORAL) During the course of arguments, it has come to light that plaintiff has asserted that the alleged encroachment made by the respondent was prior to the filing and not during the pendency of the suit. However in the suit filed by the appellant, the plea raised by him is that he is the owner in possession of the land 4/1 (0-11), 2(3-3) and if any portion of the land is encroached during the pendency of the suit then the defendant should vacate the same. It is something different that the plaintiff could not succeed in establishing encroachment by leading sufficient evidence but it is apprehended that the plaintiff should not fail due to the technical defect in the suit that he was entitled to possession of the encroached area only if encroachment is found to have been made during the pendency of the suit as such he has prayed that he may be allowed to withdraw the suit to file a fresh one on the same cause of action. R.S.A. No. 82 of 2009 (O&M) 2 Keeping in view the aforesaid technical defect in the plaint, this Court deems it appropriate to permit withdrawal of the suit with further permission to file a fresh one regarding the encroached area. As such, I allow this appeal, set aside the impugned judgments of both the courts below and permit the plaintiff to file the suit for possession afresh on the basis of encroachment, if any, subject to payment of Rs. 5000/- as cost. (A.N.JINDAL) 06.05.2009 JUDGE reena