IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 66 of 2003 Date of decision: 22.12.2010. Netar Singh and others …Petitioners. Versus Mohan and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. G.R.Palsra, Advocate. For the respondents No. 2 to 7: Ms. Madhu Sharma vice Mr. Ashwani Sharma, Advocate. Deepak Gupta, J. (Oral) 1. By means of this petition, the petitioners (here-in- after referred to as the plaintiffs) have challenged the order dated 16.07.2003 passed by the learned Sub Judge, Mandi, whereby the application filed by the petitioners for withdrawing the suit with permission to file fresh one on the same cause of action has been rejected. 2. The undisputed facts are that defendants No. 2 and 3 filed a suit against defendant No.1 claiming that they alongwith defendant No.4 are in occupation of the suit land and defendant No.1 in whose name the suit land is entered has no connection with the same. The plaintiffs filed an application under Order 1 Rule 10 in the 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 said suit, which was rejected and according to the plaintiffs they were directed to file a separate suit to establish their rights. Thereafter, the plaintiffs filed the present suit claiming that though defendant No.1 is shown as owner in possession of the suit land and defendants No. 2 to 4 in their suit are claiming to be owners in possession of the suit land, in fact, the suit land is in possession of the plaintiffs since the time of their ancestors and therefore, it was prayed that a decree for declaration be passed that the suit land is in the possession of the plaintiffs and they have become owners of the same by way of adverse possession and the defendants be restrained from interfering in the possession of the plaintiffs over the suit land. 3. This suit was filed in the year 1996 and after the suit had gone to trial and both sides led evidence. In the year 2003 the plaintiffs filed an application seeking permission of the Court to withdraw the suit with liberty to file a fresh one on the ground that there were two Mohan Singhs and the entry was not in favour of Mohan Singh S/o Amaru but in the name of Mohan Singh S/o Kundan, who was predecessor-in-interest of the plaintiffs and therefore, plaintiffs want to withdraw the suit. This application has been rejected. Hence, the present petition. 3 4. Order 23 Rule 1(3) of the CPC has no application to a case like the present one. Under the said provision, the suit filed by the plaintiffs must fail by reason or some formal defect or there should be other sufficient grounds for allowing the plaintiffs to institute a fresh suit for the subject matter of a suit or part of the claim. The plaintiffs want to now change the whole nature of the suit. Earlier, they were claiming that though the suit land was owned by defendant No.1 they have become owners of the same by way of adverse possession. Now, they want to derive title under one Mohan Singh S/o Kundan. They cannot be permitted to do so and the application was rightly rejected by the trial Court. 5. The parties are directed to appear before the learned trial Court on 14th February, 2011. The petitioners shall be given only one opportunity to lead rebuttal evidence. It shall be the responsibility of the petitioners to produce their entire rebuttal evidence on the date fixed. Since the original suit was filed in the year 1996, the learned trial Court shall ensure that the suit is disposed of latest by 30th April, 2011. 22nd December, 2010 (Deepak Gupta) ™ Judge