Civil Rev. 1096 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT, CHANDIGARH Civil Rev. 1096 of 2008 Date of decision: 31.7.2009 Ranjit Chauhan Petitioner vs The Union of India and another Respondent Present Mr. OP Goyal,Sr.Advocate with Mr.Varun Sharma, Advocate. Ms. Renu Bala Sharma, Advocate M.M.S.BEDI,J. Plaintiff- petitioner has preferred this revision petition under Article 227 of the Constitution of India against the order dated 31.1.2008 passed by Civil (Jr. D), Ambala Cantt declining his request to withdraw the suit on account of the technical defect in the plaint with permission to institute the said suit again on the same cause of action. The plaintiff- petitioner had filed a suit for declaration to the effect that Bungalows No. 80 and 80A, situated at the crossing of Alexandra Road and Mansfield Road, Ambala Cantt. along with the land underneath and appurtenant to them are old grant and the same is free hold property of the heirs of Shri S.Nathenial, including the petitioner and for a mandatory injunction directing the defendant respondents to rectify their records to the effect that the plaintiff being one of the sons of Sh. I.E.N.Chauhan is the absolute and sole owner of the portion abutting the Mansfield Road and forming the part of the said Bungalows. Civil Rev. 1096 of 2008 2 The plaintiff- petitioner had sought the amendment in the description of the property by moving an application under Order 6 Rule 17 CPC to add the following description:- “ 80 Alexandra Road, the main Estate and tenements 80/a & 80/2 with common entrance onto Mansfield Road, house Accomodation Act Area, Ambala Cantt...” The said amendment was not allowed by the Civil Judge (Jr.D.) vide order dated 23.12.2006. Thereafter, the petitioner filed an application on 6.6.2007 to withdraw the suit with permission to file a fresh suit claiming that there was some error in the plaint and an application for amendment had been filed but the same was dismissed on 23.12.2006, as such the plaintiff- petitioner wanted to withdraw the case with permission to file a fresh suit on the same cause of action. Vide the impugned order dated 31.1.2008 the application has been dismissed on the ground that the plaintiff has not pointed out any formal or technical defect in his plaint or during the course of arguments. Learned counsel for the plaintiff- petitioner has placed on record a site plan regarding the property in dispute as well as the photograph of the property in dispute as Annexues P-6 and P-7 to clarify that the description of the property had not been properly given in the original plaint, which was a technical defect on account of the typographical error and the same could have been permitted to be rectified. Since the amendment was not allowed, the objective of filing a suit would have been defeated. After hearing learned counsel for the parties and going through the plaint and the order declining the amendment of the plaint, it is apparent that there had been a technical defect and there was sufficient material with the Court to arrive at a conclusion that the suit of the plaintiff- Civil Rev. 1096 of 2008 3 petitioner would fail on account of the formal or technical defect and that there was sufficient ground for allowing the petitioner to institute a fresh suit on the same cause of action. In this context the trial court should have taken into consideration the provisions of Order 7 Rule 3 CPC, which lays down that where the subject matter of the suit is immovable property, the plaint should contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint should specify such boundaries or numbers. In the preset case, after the trial court had refused to permit the petitioner to amend the plaint to rectify the description of the property and had not enabled the plaintiff to give the proper description of the property, there was no alternative for the plaintiff- petitioner to withdraw the suit with permission to file a fresh one. In view of the above circumstances, the petition deserves to be allowed. The revision petition is allowed, the impugned order dated 31.1.2008 is hereby set aside and the application dated 6.6.2007 for withdrawal of the suit with permission to file a fresh one on the same cause of action is allowed subject to the condition that the plaintiff- petitioner will pay costs of Rs.5,000/- to the respondents, if fresh suit on the same cause of action is filed by him. July 31 ,2009 ( M.M.S.BEDI ) TSM JUDGE