IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.7685 of 2009 Date of decision : 03.08.2010 Nachattar Singh … Petitioner Versus Darshan Singh and others …Respondent Coram: Hon’ble Mr.Justice Vinod K. Sharma Present: Mr.M.S.Lobana, advocate for the petitioner. Ms.J.K.Dhillon, Advocate for respondent Nos.1 to 6. Vinod K. Sharma, J. (Oral) The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order passed by the learned trial Court vide which application moved by the plaintiffs-respondents under Order 23 Rule 1 and 3 of the Code of Civil Procedure ( in short the ‘CPC’) stands allowed. The impugned order reads as under:- “Arguments heard on application under Order 23 Rules 1 and 3 filed by the plaintiffs. Learned counsel for plaintiffs argued that this suit was filed on 23.7.2003 and notice was issued to the defendants. Defendants no.10 and 11 were served and defendants No.1 and 2 did not appear despite service and were proceeded against ex parte and the matter was adjourned for service of un-served defendants for 22.11.2003. In the meantime, defendants No.10 and 11 filed written statement. In his reply defendant No.11 did not take any objection regarding the fact that the defendants No.3 to 6 had already been died intentionally only to linger on the proceedings. Plaintiffs have got no knowledge at the time of filing of the suit that defendants No.3 to 6 have already been died. But when the plaintiffs came to know that defendant No.3 Gurdev Kaur has died, they filed an application on 27.8.2003 under Order 22 rule 4 read with Section 151 CPC but contesting defendants also did not give its reply for a long period and they filed reply on 26.5.2004. Plaintiffs came to know that during pendency of this suit, defendants No.3 to 6 died, so they Civil Revision No.7685 of 2009 filed an application under order 22 rules 3, 4 and read with section 151 CPC and under order 6 rule 17 CPC on 13.9.2004. Reply of which was filed by the defendants on 13.12.2004. Plaintiffs also filed an application under order 1 rule 10 CPC for impleading the LRs of defendant No.3 Gurdev Kaur and reply of the same was filed on 7.6.2006. Learned counsel further argued that vide order dated 9.1.2007, applications dated 27.8.2003 and 13.9.2004 were dismissed. The plaintiffs filed a petition before Hon’ble High Court and Hon’ble High Court dismissed the revision petition with a liberty to the plaintiffs to have recourse to the provisions of law for impleading any party, if so desires. Thereafter, on 22.2.2008, plaintiffs filed an application u/o 1 rule 10 CPC and under order 6 rule 17 read with section 151 CPC which was dismissed vide order dated 29.7.2009 with a liberty to file a fresh suit by impleading all necessary legal heirs of deceased defendants. In these circumstances, the plaintiffs went to file fresh suit on the same cause of action and regarding the same subject matter, for which permission is required to be granted. On the other hand, learned counsel for defendant No.10. did not advance any argument. However, learned counsel for defendant No.11 argued that application is not maintainable as there is no formal defect in this case. The plaintiffs came to know regarding death of some defendants in the year 2003 and he filed the suit against dead persons. Thus, no permission to file fresh suit can be granted. I have heard the rival contentions of learned counsel for both the parties and have gone through the file carefully. Filing of various applications and decision of the same, order of Hon’ble High court as discussed above, are admitted facts. The plaintiffs have filed the present suit for declaration to the effect that they are owners in possession of land measuring 38 kanals 1 marla vide sale deed dated 20.8.1965. They have filed this suit against 11 defendants. While contesting an application under order 1 rule 10 and under order 6 rule 17 read with section 151 CPC vide order dated 29.7.2009, this court dismissed the application with liberty to the plaintiffs to file fresh suit by impleading all necessary parties after withdrawal of the present suit. The contesting defendants or any body else did not file revision petition against the said order. Thus, now the contesting defendants are estopped from saying that permission to the plaintiffs cannot be granted. If permission is granted to the plaintiffs to file a fresh suit on the same cause of action and regarding the same subject matter, it would not cause prejudice to any right of the contesting defendants as they shall have a right to defend the same. 2 Civil Revision No.7685 of 2009 Keeping in view all aspects and circumstances and in the interest of justice, application is allowed, subject to costs of Rs.3000/- with a liberty to the plaintiffs to file a fresh suit on the basis of same cause of action and regarding same subject matter and accordingly, suit stands dismissed as withdrawn. File be consigned to Judicial Record Room, Moga.” The argument of the learned counsel for the petitioner is based on the facts noticed by the learned Court, to contend that the plaintiffs- respondents were totally negligent in conducting the case, and therefore, it was not a case which fell under Order 23 Rules 1 and 3 CPC. It is also the contention of learned counsel for the petitioner that application moved by the plaintiff/respondents did not disclose any ground or formal defect which could result in dismissal of suit, so as to give jurisdiction to learned Court to grant permission, to file a fresh suit, on the same cause of action, specially when the application moved was not bona fide. In support of the contention, learned counsel for the petitioner placed reliance on the judgment of this Court in case Narain Dass adopted son Shri Duga Parshad Vs. Om Parkash etc. 1982 CLJ (C.&Crl.) 146, wherein this Court was pleased to lay down that application for withdrawal of the suit with permission to file fresh suit on same cause of action when the suit is at final stage could not allowed on the ground that two of the defendants had died, and their legal representatives were not brought on record and further that there was a dispute of location and demarcation of the property, could not be said to be a formal defect. The reliance was also placed by the learned counsel for the petitioner on the judgment of this Court in case of Gurcharan Singh vs. Smt.Nihal Kaur etc.1975 Cur.L.J.719, wherein it was laid down that in absence of formal defect, within the meaning of Order 23, Rule 1 CPC, the Court, has no jurisdiction, to allow withdrawal of the suit with permission to file a fresh suit. The ground, that proper parties were not impleaded or that correct Khasra numbers were not entered in the plaint; or proper court fee was not paid etc., could not be said to be formal defect falling under Order 23 Rules 1 and 3. 3 Civil Revision No.7685 of 2009 On consideration, I find no force in the contention raised by the learned counsel for the petitioner. It is not in dispute that the plaintiffs-respondents filed the suit for declaration claiming to be owner in possession on the basis of sale deed dated 20.8.1965. The suit was filed against the defendants even though defendants No.3 to 6 were dead. The suit against dead persons was not competent. The plaintiffs-respondents immediately on coming to know, about the defect in the suit, moved an application under Order 22 Rule 4 CPC for impleading the legal representatives of the deceased-defendants. The application was dismissed by the trial Court, in view of the fact that the defendants were dead before filing of the suit. The application under Order 22 Rule 4 CPC was held to be not competent. The plaintiffs-respondents filed revision against the order rejecting their application for bringing on record the legal representatives of the deceased-defendants. The revision filed by the plaintiff/respondents was dismissed, with a liberty to the plaintiffs to have recourse to the provisions of law, for impleading any party, if so desired. In view of the observation made by this Court, plaintiffs- respondents moved an application under Order 6 Rule 17 CPC read with Order 1 Rule 10 CPC for impleading legal representatives of the deceased- defendants. This application was also dismissed as defendants No.3 to 6 were dead, prior to the filing of the suit. While dismissing the application filed under Order 6 Rule 17, the learned court observed that plaintiffs should withdraw the suit, with liberty to file a fresh, on same cause of action, instead of amending the suit. It may also be noticed, that during the pendency of the suit and the applications moved by the plaintiffs-respondents, the suit qua defendants No.7 to 9 was dismissed, for want of process fee and service of defendants No.7 to 9. The order was passed under Order 9 Rule 3 CPC. The plaintiffs- respondents challenged the said order also. The revision was dismissed being not maintainable, as the plaintiffs-respondents had an alternative remedy by moving the trial Court under Order 9 Rule 4 CPC. 4 Civil Revision No.7685 of 2009 Learned counsel for the petitioner also contended that in view of the dismissal of the suit against defendants No.7 to 9, no liberty could have been granted to the plaintiff to file a fresh suit on the same cause of action. This contention of the learned counsel for the petitioner cannot be accepted. As per provisions of Order 9 Rules 2 to 4, when the suit is dismissed under Order 8 Rule 3, the plaintiff has a remedy to file a fresh suit, against the defendants. Therefore, this order of trial court cannot be a bar to file fresh suit, even without a liberty of the Court. The facts noticed by the learned trial Court, show that there was a formal defect, as the suit filed against the dead defendants was not maintainable, and was likely to fail. All attempts made by plaintiffs- respondents to cure the defect failed, rather, the learned trial Court while dismissing the application under Order 6 Rule 17 read with Order 1 Rule 10 CPC, granted liberty to the plaintiff/respondents to file a fresh suit instead of pressing the application. Thus court was of the opinion that the suit as framed was likely to be dismissed on account of formal defect. Judgments relied upon by the learned counsel for the petitioner do not apply to the facts of the present case, as it is proved that suit filed by the plaintiffs-respondents had a formal defect, therefore, impugned order cannot be interfered with by this Court in exercise of its revisional jurisdiction. No merit. Dismissed. ( Vinod K. Sharma ) Judge 03.08.2010 sd 5