Civil Revision No. 5067 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 5067 of 2009 (O&M) Date of decision: 16.9.2009 Sukhpal and another ..........petitioners Versus Champa and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Ajay Jain, Advocate. for the petitioners. **** SABINA, J. Vide this revision petition, filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 19.8..2009 (Annexure P-3) passed by the Additional District Judge, Rewari. Sukhpal and Parkash Veer-plaintiffs filed a suit for declaration to the effect that they along with proforma defendants No. 27 to 36 had become owners of the suit land being mortgagee in possession as the defendants No. 1 to 26 had failed to get the mortgaged land redeemed. The suit of the plaintiffs was dismissed Civil Revision No. 5067 of 2009 (O&M) 2 by the Civil Judge (Sr.Divn.), Kosli vide judgment and decree dated 29.1.2007. Aggrieved by the same, plaintiffs preferred an appeal. During the pendency of the appeal, plaintiffs moved an application under Order 23 Rule 1 of the Code of Civil Procedure for permission to withdraw the appeal as well as the suit with permission to file a fresh suit regarding the land in dispute. Vide the impugned order, the said application was dismissed. Hence, the present revision petition. Learned counsel for the petitioners has submitted that the application for permission to withdraw the appeal as well as the suit was liable to be allowed as there was a technical defect in the plaint/suit. The plaintiffs have wrongly averred in the plaint that the land in dispute was mortgaged vide mutation No.186, whereas, the land in dispute had been mortgaged vide mutation No.168. The defendants had pleaded that the land, which had been mortgaged vide mutation No.186 was redeemed vide mutation No.565. In support of his arguments, learned counsel for the petitioners has placed reliance on the decision of this Court in Sant Baba Darshan Singh Sewak Baba Kharak Singh vs. School Beerh Baba Budha Sahib and others 2006(2) RCR (Civil) 160. He has further placed reliance on the decision of the Karnataka High Court in Rasool Khan Allabaksha Urf Bakshakhan Jamkhanwale and another v. Vajeerkhan and others 1996(3) LJR 749. After hearing learned counsel for the petitioners, I am of the opinion that there is no ground for interference by this Court. Civil Revision No. 5067 of 2009 (O&M) 3 A copy of the application moved by the petitioners under Order 23 Rule 1 CPC has been placed on record as Annexure P-4. A perusal of the same reveals that the plea taken by the plaintiffs was that inadvertently it was stated in the plaint that the land had been mortgaged vide mutation No.186. It has further been averred that the land in dispute was mortgaged with the ancestors of the plaintiffs and proforma defendants. The land which had been mentioned in mutation No.186 and the land in dispute were totally different. The land in dispute was never got redeemed by the defendants from their ancestors and this land was still mortgaged with the plaintiffs and proforma defendants. However, it is no where stated in the application that the land in dispute was mortgaged vide mutation No.168. There is no dispute regarding the legal proposition that in case there is a formal defect in the plaint in a given case can be permitted to withdraw the suit even at the appellate stage with permission to file a fresh suit on the same cause of action. However, in the present case, the plaintiffs/petitioners had failed to establish that there was any formal defect in the pleadings which entitled the plaintiffs to seek withdrawal of the suit at the appellate stage with permission to file a fresh suit. The parties had led their evidence before the trial Court and the trial Court, after appreciating the evidence on record, has decided the suit. Hence, the petitioners could not be allowed to withdraw the suit with permission to file a Civil Revision No. 5067 of 2009 (O&M) 4 fresh one as they had failed to establish that there was any formal defect in the suit. The judgments relied upon by learned counsel for the petitioners fail to advance the case of the petitioners as they are on different facts. Hence, no ground for interference in the impugned order is called for. Accordingly, this petition is dismissed. (SABINA) JUDGE September 16, 2009 anita