C.R. No.5866 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5866 of 2009 (O&M) Date of Decision: 3.8.2010 Tarsem and another ……Petitioners VERSUS Nihal Kaur and others ……Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. N.S. Shekhawat, Advocate for the petitioners. Mr. S.S. Brar, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) C.R. No.5866 of 2009 (O&M) -2- 1. Petitioners/plaintiff has invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing order dated 14.9.2009 (Annexure P-1) passed by learned Addl. Civil Judge (Sr. Divn.), Dabwali, whereby the application moved by the plaintiff under Order 23 Rule 1 C.P.C. seeking permission to withdraw the suit with liberty to file fresh suit was declined. 2. Learned trial Court declined the permission under Order 23 Rule 1 C.P.C. on the ground that plea which ought to have been taken in the plaint by the plaintiff at the initial stage can not said to be a technical defect which can entitle plaintiff to withdraw the present suit with liberty to file afresh. Another reason assigned by learned trial Court is that earlier plaintiff had moved an application under Or- der 6 Rule 17 C.P.C. seeking addition of those left over pleas in the plaint which was declined by the Court, hence, after rejection of the amendment application permission can not be granted to the plaintiff to withdraw the plaint with liberty to file afresh after adding all the pleas, which ought to have been taken in the plaint at the initial stage. 3. Learned Counsel appearing for the petitioners/plaintiff has placed reliance on the judgment of the Hon’ble Apex Court in the matter of Baniram and others vs. Gaind and others reported in AIR 1982 Supreme Court 789. The Hon’ble Apex Court in the mat- ter of Baniram (supra) has held as under:- C.R. No.5866 of 2009 (O&M) -3- “At this stage Mr. Phadke wishes to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action. Having considered the fact that non-pleading may prove a technical impedi- ment and may result in the dismissal of the appeal which may impede a fresh adjudica- tion if a point is to be made though belated, we consider it just and proper in the interests of justice to permit the appellant-plaintiff to withdraw the suit with liberty to file a fresh suit as stated hereinabove.” 4. Learned Counsel for the respondents/defendants having read the dictum of the Hon’ble Apex Court in the matter of Baniram (supra) agreed that plaintiff may be permitted to withdraw the suit with liberty to file fresh suit, however, defendants should be compen- sated by way of heavy costs. 5. With the consent of learned Counsel for the parties fol- lowing order is being passed:- i) Application moved by the plaintiff under Order 23 Rule 1 C.P.C. seeking permission to withdraw the plaint with liberty to file afresh on the same cause of action is al- lowed; ii) Suit is permitted to be withdrawn with liberty to the plaintiff to file fresh suit after adding all the pleas and re- lief available under the law to the plaintiff; C.R. No.5866 of 2009 (O&M) -4- iii) Defendants/respondents shall be at liberty to raise all the defences including the defence of limitation in a suit which is to be filed by the plaintiff afresh; iv) Plaintiff/petitioners shall pay Rs.30,000/- as costs to the defendants/respondents. Costs shall be paid within three weeks from today. v) In the event of non-payment of costs in the prescribed period, plaintiff/petitioners shall not file fresh suit. 6. Petition stands disposed of with the consent of learned Counsel for the parties in the above terms. ( ALOK SINGH ) 03rd August, 2010 JUDGE ashish