CMPMO 134 of 2008. 28.7.2008 Present: Mr. Dalip Sharma, counsel for the petitioners. Mr. G.D.Verma, Sr. Advocate, with Mr. Romesh Verma, counsel for the respondent. This petition has been filed by the defendants against the order passed by learned Civil Judge (Junior Division), Arki, allowing the application under Order 23 Rule 1 (3) of the Code of Civil Procedure for permission to withdraw the suit. The applicants had pleaded that at the time of filing of the suit, respondent No. 3 Smt. Bimla Devi was recorded as the wife of one Shri Mast Ram and conspiracy was hatched by the defendants through the respondent as aforesaid by filing a civil suit for declaration to the effect that she is not the wife of Mast Ram, the applicant who was not a party to that suit. It was pleaded that wrong address of Mast Ram was given and an ex parte declaratory decree was obtained. In the written statement, no mention of such judgment and decree has been made and the plaintiff – applicant has been kept in the dark. It was only on 6.11.2004 that the fact came to his knowledge. He pleads that the plaintiff cannot claim declaration in the present suit as his entire claim cannot now be -2- incorporated by way of amendment. After due consideration of the application, the learned trial Court granted permission to the applicant- plaintiff to withdraw the suit and to file a fresh suit in accordance with law. The pleadings and the averments made by the applicant are clear and disclose that the relief(s) claimed for could not have been allowed to the applicant – plaintiff unless fresh pleadings and cause of action is incorporated therein. In these circumstances, I find no illegality in the order which has been passed. This petition is accordingly dismissed. There shall be no order as to costs. July 28, 2008 (PC). (Dev Darshan Sud), J.