Single Bench BEFORE THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Shri WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA. W.P.(227)No. 26fy§ [2011 PETITIONER PLAINTIFF S/o. /Nanku Ram Patel, Dukalharam Patel, aged about R/o. Village Mandhar, g S, 7/. :" hob District Raipur (C.G.) v.“ N“ ‘\)\§A ‘ ‘1 C7w %J/ VERSUS we / y dam ........ RESPONDENT Shiv Kumar Patel, S/o. Late PLAINTIFF Patel, aged about 35 years, HIGH COURT OF CHHATTIsGARH AT BILASPUR Writ Petition (227) No. 3593 of 2011 2 Nanku Ram Patel VERSUS : Shiv Kumar Patel RESPONDENT Defendant gv_VRIT PETITION UNDER ARTICLE 227 OF THE CONSTuTUTION OF INDIA) - (SB: Hon'ble Mr. N.K. 'Agarwai, J4 Present : .Shri AK Prasad, Advocate ior the petitioner. ORAL ORDER (Passed on 07.07.2011) Heard on admission. in 1. Petitioner/plaintiff instituted a ,suit for declaration and. permanent injunction. 2. As per plaint averment, piaintiff is in possession of the suit property. The respondent/defendant, in his written submission, specifically denied plaint averment regarding possession of the suit property. According to defendant he is in possession of the suit ' property. Plaintiff moved an application for amendment of plaint seeking relief of possession against the defendant. Petitioner’s amendment application was allowed by the trial court. 4.‘ The above order has been challenged by the respondent by filing Writ Petition (227) No. 7285/2009 before this court. This‘court vide its order dated 14.09.2010 (Annexure PIS) observed : fact of dispossession was within the knowledge of the plaintiff on the date of filing of the suit and plaintiff did not satisfy the court that in spite of due diiigence the amendment could not have been raised before the commencement of trial, and allowed the respondent’s petition. At this juncture, effOIt was made by the petition for withdrawal of the suit with permission to tile afresh by filing application under Order 23 Rule 1 (3) of CPC before the trial court. The trial court vide order impugned dated 26.03.2011 rejected the plaintiffs prayer. Shri Prasad, learned counsel appearing for the petitioner would submit the suit preferred by the plaintiff suffers from fon'nal defect, inasmuch as, has been tiled without claiming relief of possession though plaintiff was not in possession of‘the suit property and therefore, the trial court has erred in rejecting plaintiff’s application. I have heard the counsel appearing for the petitioner and perused the order impugned. Under order 23 Rule 1(3) of CFC-Where the court is satisfied,- (l) that a suit must fail by reason of some formal defect, it‘may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Coming to the facts of the present case, it is not a case of the plaintiff that inadvertently the relief of possession has not been claimed and therefore the defect is fonnal. On the contrary, as per plaintiff, he is in possession of the suit property even before filing of the suit. The amendment preferred by him has also been A3 dismissed by this comt. in such circumstances, it cannot be said I that relief of possession has not been claimed by the plaintiff due to inadvertence and the defect is formal. 10. In view of above, l do not find any‘ illegality in the order impugned warranting interference of this court under Article 227 of the Constitution of India. 11. it is well settled principle of law that this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of lndia, should refrain itself from interfering with the order passed by - the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. For the reasons mentioned hereinabove, the petition faits and is accordingly dismissed. No order asto costs. ‘_ Sd/- N.K. Agrawal Judge Sahu ' ,