C.R. No. 2797 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 2797 of 2009 Date of Decision: July 9, 2009 Ram Lal Tantia …..Petitioner Vs. Vijay Kumar and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Suman Jain, Advocate for the petitioner. Mr.Sandeep Khunger, Advocate for respondents No.1 and 2. -.- M.M.S. BEDI, J. (ORAL) It is claimed that the plaintiff- petitioner wants to withdraw the suit for declaration with liberty to file a fresh one as the relief of possession has not been sought. The said request has been declined on the ground that the permission to withdraw the suit with leave to file the fresh suit on the same C.R. No. 2797 of 2009 [2] cause of action cannot be allowed as the suit is 11 years old and is fixed for rebuttal evidence. Counsel for the petitioner submits that the relief could have been granted to the petitioner subject to determination and imposition of any costs in the interest of justice. The relief under Order 23 Rule 1 CPC can be granted even after dismissal of the suit by lower Court at appellate stage as per the observations made in Sant Baba Darshan Singh Sewak Baba Kharak Singh Vs. School Beerh Baba Budha Sahib and others, 2006 (2) RCR (Civil) 160. This Court in Pritam Singh Vs. Bachan Singh, 1998 (3) RCR (Civil) 344 had approved the order passed by civil Court permitting plaintiff to withdraw the suit for declaration where he did not claim possession holding that in such circumstances no injustice or prejudice can be said to have been caused to the other party. Counsel for the petitioner has relied upon Veer Bhan and another Vs. Madan Gopal, 1991 (1) PLR 199, to indicate that such a relief could have been granted by the trial Court. Similarly, in Kanhyia Lal and another Vs. Nathu and others, 1989 (2) PLR 449 where the plaintiff had not sought a relief for possession, it was held that permission to withdraw the suit can be given with liberty to the plaintiff to file a fresh suit, however, subject to payment of costs. The trial Court seems to have been persuaded by the period which has elapsed since the filing of the suit while dismissing the application of the plaintiff/ petitioner. The impugned order is set aside and C.R. No. 2797 of 2009 [3] the matter is remanded back to the trial Court to consider the relevant law on the point cited by counsel for the plaintiff. It will be open to the defendant- respondents also to cite any case law in their favour. With the above observations, this revision petition is allowed. Counsel for the defendant- respondents has submitted that the suit had been filed with malafide intention to create a defence in the criminal case registered against the plaintiff which is still pending. In view of such circumstance, the plaintiff cannot be permitted to withdraw the suit with liberty to file fresh suit. All the pleas can be raised by the parties before the trial Court. Parties are directed to appear before the trial Court on July 16, 2009, on which date or any other date fixed by the Court, the trial Court will hear the arguments, consider the relevant case law and decide the application afresh by passing a speaking order. July 9, 2009 (M.M.S.BEDI) sanjay JUDGE