R.S.A. No. 2008 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2008 of 2008 (O&M) Date of decision: 16.04.2009 Parkashi Devi ....Appellant Versus Rekha and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Vipul Dharmani, Advocate, for the appellant. Mr. Vishal Garg, Advocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) The plaintiff/appellant by way of this regular second appeal has challenged the judgment and decree dated 29.2.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant for declaration claiming his right to inherit the property of Sehaj Ram being his legal heir stands dismissed as premature. The plaintiff/appellant brought a suit for declaration by claiming presumption of civil death of Sehaj Ram predecessor-in-interest of the parties. The suit was contested by the defendant/respondents by setting up a 'Will' said to have been executed by Sehaj Ram in their favour. Though, on the pleadings of the parties, the learned trial Court R.S.A. No. 2008 of 2008 (O&M) -2- was pleased to frame ten issues, however, the suit was disposed of by deciding issues No. 1 and 9 only, which related to presumption of civil death of Sehaj Ram. The suit was dismissed being premature having been filed few months prior to completion of seven years, though, the disappearance and presumption of death of Sehaj Ram was not even disputed by the defendant/respondents. Though under normal circumstances, in view of the law laid down by the Hon'ble Supreme Court in M/s Bay Berry Apartments Pvt. Ltd and another Vs. Shobha and others, 2007(2) Civil Court Cases 32 (SC), as the learned Courts below have not given any decision on other issues, the case would be required to be remanded back for re- consideration to the learned trial Court. In view of this, the learned counsel for the appellant prays that he may be permitted to withdraw the suit with liberty to file a fresh one on the same cause of action. Keeping in view the fact that the suit of the plaintiff/appellant was dismissed on hyper-technical ground of being premature, it would be in the interest of justice, if the plaintiff/appellant is allowed to withdraw the suit with liberty to file a fresh one on the same cause of action. Ordered accordingly. Appeal is disposed of. (Vinod K. Sharma) Judge April 16, 2009 R.S.