CR No. 2498 of 2010 1 In the High Court of Punjab and Haryana, Chandigarh. CR No. 2498 of 2010 (O&M) Date of Decision: .07.2010 Raghbir Singh ....Petitioner Versus Kulwant Singh and others ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Manmohan Singh, Sr. Advocate with Mr. M.P. Gupta, Advocate for the petitioner. Mr. M.S. Khaira, Sr. Advocate with Mr. Dharminder Singh, Advocate for the respondent. ... Alok Singh, J. Defendant – petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 19.12.2009 rendered by the Additional Civil Judge, (SD), Tarn Taran, whereby the plaintiff was permitted to withdraw the suit with liberty to file a fresh suit. Brief facts of the present case are that the plaintiff filed a suit CR No. 2498 of 2010 2 against his own father defendant No.1 and his brothers and sisters defendants Nos.2 to 6, inter-alia with the contention that defendant No.1, his father is about 90 years of age and defendant No.2 (brother of the plaintiff) got sale-deed executed from his father on 24.10.2005 in respect of the land measuring 24 kanals 10 marlas; plaintiff is also having interest in the said property; defendant No.1 father had no authority to transfer the land in favour of defendant No.2. A declaration was sought that sale deed dated 24.10.2005 executed by defendant No.1 - father in favour of defendant No.2 be declared null and void and defendant No.2 be restrained from dispossessing the plaintiff from the suit land and he may further be restrained from creating third-party interest. Written statement was filed by defendant No.2 – petitioner as well as by defendants No.3, 5 and 6. Father – defendant No.1 also filed his counter claim seeking joint possession of 1/5th share in respect of the land. During the pendency of the suit and before the commencement of the trial, an application under Order 23 Rule 1 CPC was filed by the plaintiff seeking permission from the Court to withdraw the suit with liberty to file fresh one. Replies were filed by the defendants to the application seeking permission to withdraw the suit with liberty to file fresh suit. The trial Court vide impugned order dated 19.12.2009 allowed the application of the plaintiff and permitted the plaintiff to withdraw the suit with liberty to file a fresh suit. Learned counsel for the petitioner – defendant No.2 vehemently argued that no permission could have been granted to the plaintiff to withdraw the suit with liberty to file a fresh one. Learned senior advocate appearing for the petitioner – defendant No.2 placed reliance on the CR No. 2498 of 2010 3 judgement of this Court in the matter of Piara Ram Vs. Ganesh Dass, reported in AIR 1967 page 237 and the judgement of the Andhra Pradesh High Court in the matter of Somalraju Chinnammi Vs. Samanthu Sivaji Ganesh and another, reported in 2009 (3) Civil Court Cases 395 and argued that without proving formal defect in the plaint, permission to file fresh suit ought not to have been granted. Learned senior advocate appearing for the respondents in reply stated that since permission was sought at the very initial stage, hence no prejudice is caused to the defendants while permitting the plaintiff to withdraw the suit with liberty to file a fresh suit. Learned counsel for the plaintiff stated that the plaint was not happily worded. He states that the plaintiff has interest in the property but it could not be stated in the plaint by the mistake of the counsel that the property under reference is ancestral property and the plaintiff is co-owner of the property. In view of this, permission was rightly granted. Learned Single Judge of this Court in the case of Piara Ram (supra), has placed reliance on the judgement passed by the Privy Council in paragraph 5 of the judgement, which reads as under: - “5. The learned Subordinate Judge, in my opinion, appears to have been labouring under an impression that it is open to the Courts in India to allow a suit to be withdrawn with liberty of suing again without assigning any reason for adopting such a course, and outside the provisions of Order 23, Rule 1(2). This impression is, if I may say so, wholly misconceived. I may at this stage with advantage reproduce the following observations from a judgment of the Privy Council in Robert Watson and CR No. 2498 of 2010 4 Co. v. Collector of Rajshaye, (1870) 13 Moo Ind App 160 (PC) :-- "There is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them." Learned Single Judge of the Andhra Pradesh High Court in the matter of Somalraju Chinnammi’s case (supra), in paragraph 9 has observed as under: - “9. It is also relevant to note that under Order 23 Rule 1 (3) of C.P.C. for granting permission to institute a fresh suit on the same cause of action the satisfaction of the Court that the suit must fail by reason of some formal defect is mandatory. Hence, it is essential for the plaintiff while seeking leave of the Court under Order 23 Rule 1 (3) of C.P.C. to establish that the formal defects in the suit are likely to lead to dismissal of his CR No. 2498 of 2010 5 suit. Thereupon if the Court is satisfied that the suit must fail by reason of such formal defects then only the plaintiff can be permitted to withdraw his suit with liberty to file a subsequent suit in respect of the same subject-matter.” I have carefully examined the arguments advanced by the senior advocates appearing for the parties. I have perused the judgements cited by the learned counsel for the petitioner. In both the cases cited by the learned counsel for the petitioner, permission to withdraw the suit with liberty to file a fresh suit was declined keeping in mind that the trial had already commenced and the plaintiff had failed to produce relevant evidence and the plaintiff cannot be permitted to withdraw the suit with liberty to file fresh to fill up the lacunae, which had been left by the plaintiff in evidence. In the case of Amar Singh Vs. Kashmiri Lal, 2009(2) CCC 449, learned Single Judge of this Court in paragraph 19 has observed as under: - “19. However, the learned trial court came to the conclusion that the suit of the plaintiff was likely to fail because of formal defects in framing the suit as it was for mandatory injunction instead of specific performance. It was open to the court even to have allowed the amendment of the suit to convert the same into one for specific performance. However, keeping in view the fact that negligence on the part of the counsel was noticed, the court exercised its jurisdiction under Order 23 Rule 1 of the Code to permit the petitioner to withdraw the suit with liberty to file a fresh one on the same cause of action. CR No. 2498 of 2010 6 The court has also given reasons for such permission i.e. to say that the suit was likely to fail on the view of technical defects of framing the suit as that of mandatory injunction.” In the case in hand, evidence was not produced and the application seeking permission to withdraw the suit with liberty to file fresh was moved soon after the framing of the issues. Perusal of the plaint would reveal that the plaintiff is contending therein that he has interest in the property but he failed to mention that he is co-owner of the property and the property is ancestral property, due to the negligence of the counsel. Defendants nowhere stated in their respective written statements that the property was self acquired property of the father – defendant No.1. To make the pleadings more clear, permission granted by the Court below seems to be justified. Permission under Order 23 Rule 1 CPC can be granted by the Court while exercising judicial discretion, more particularly when the permission is sought at the initial stage. In my considered view, the trial Court has rightly exercised its jurisdiction while permitting the plaintiff to withdraw the suit with liberty to file a fresh one. Petition is devoid of merit and hence is dismissed. ( Alok Singh ) Judge .07.2010 sk.