C.R. No.7247 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.7247 of 2009 Date of Decision: 08.12.2009 Sukhjit Singh and others .……Petitioners Versus Balwinder Kaur and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vipin Mahajan, Advocate for the petitioners. L. N. MITTAL, J (ORAL) Plaintiffs No.1 to 5 have filed this revision petition under Article 227 of the Constitution of India challenging order dated 07.09.2009 (Annexure P-5) passed by learned Additional District Judge, Gurdaspur whereby application filed by the appellants (in appeal preferred against dismissal of their suit) 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 a fresh suit on the same cause of action, has been dismissed. Plaintiffs filed suit for declaration that they are entitled to the estate of Pritam Singh since deceased, on the basis of Will dated 27.01.2000. Plaintiffs also sought correction of entries in revenue records on the basis of registered gift deed dated 21.07.1967 allegedly executed by Pritam Singh. Plaintiffs also claimed relief of possession of the suit land from the defendants. Sale deeds executed by the defendants were also challenged in the suit. The C.R. No.7247 of 2009 -2- suit was dismissed by the trial Court. The plaintiffs preferred appeal against judgment and decree dated 07.09.2005 passed by the trial Court dismissing the suit. During the pendency of the appeal, the appellants moved application under Order 23 Rule 1(3) C.P.C for permission to withdraw the suit with liberty to file fresh suit on the same cause of action alleging that due to mistake and inadvertence, description of the suit property could not be mentioned in the plaint and details of the sale deeds and the property involved in the sale deeds also could not mentioned in the suit. Contesting respondents resisted the aforesaid application and inter alia pleaded that the application is not maintainable in the present form and the appellants have no locus standi to withdraw the suit at this stage and the appeal qua respondent Nos.5 to 8, 10, 11, 13, 15, 19, 26, 31 and 33 already stood dismissed vide order dated 19.08.2008. The application was also resisted on merits. It was pleaded that the appellants were well-aware about the alleged discrepancies during the pendency of the suit and the instant application has been moved to fill up lacuna. I have heard learned counsel for the petitioners and perused the case file. As noticed hereinabove, the suit filed by the plaintiffs already stands dismissed and the application for withdrawing the suit with liberty to file fresh one on the same cause of action was filed during the pendency of the appeal. At this stage, the application could not have been allowed except for very strong reasons. Learned counsel for the petitioners has relied on a judgment of Hon’ble Apex Court in the case of R. Rathinavel C.R. No.7247 of 2009 -3- Chettirar and another versus V. Sivaraman and others, 1999 (1) Apex Court Journal 462. However, observations made in the aforesaid judgment by Hon’ble Apex Court go against the petitioners. It has been observed that withdrawal of suit at appellate stage with liberty to file fresh one cannot be allowed as a matter of course, but has to be allowed very rarely and only when a very strong case is made out. The rights which have come to be vested in parties to the suit under the decree of the trial Court cannot be taken away by withdrawal of suit at appellate stage unless very strong reasons are shown that the withdrawal would not effect or prejudice anybody's vested rights. The instant case by no stretch falls in the category of rare case for this purpose nor strong reasons are made out for granting the relief prayed for by the petitioners. On the other hand, if the said relief is granted, vested rights of defendants would be effected adversely. The suit was filed in the year 2000 and appeal was filed in the year 2005 and application was moved in the year 2008 i.e after fighting the litigation for long 8 years. No case is made out for permitting the plaintiffs to withdraw the suit with liberty to file fresh one on the same cause of action. In addition to the aforesaid, as noticed by the appellate Court, the appeal already stands dismissed qua 12 respondents. For this reason as well, the relief sought by the appellants could not have been granted by the appellate Court. For the reasons recorded hereinabove, I find no infirmity or illegality in the impugned order of the appellate Court so as to warrant interference at the hands of this Court in exercise of jurisdiction of superintendence under Article 227 of the Constitution C.R. No.7247 of 2009 -4- of India. The instant revision petition is bereft of any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 08.12.2009 A. Kaundal