1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R No. 178 of 2008. Date of decision: 21.8.2009 Jag Ram …….Petitioner Vs. Gulzari Lal & Ors. ….. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Petitioner : Mr. G.R. Palsra, Advocate. For the Respondents : Mr. K.D. Sood, Advocate. Kuldip Singh, Judge(Oral) This revision has been directed against the order dated 4.9.2008 passed by Civil Judge ( Senior Division) Lahaul & Spiti at Kullu in C.M.A. No.78-VI/2006. 2. The facts in brief are that petitioner had filed Civil Suit No.89/2002 in the Court of Civil Judge ( Senior Division) Lahaul & Spiti at Kullu against respondent for permanent prohibitory injunction which was fixed for evidence of the plaintiff on 30.5.2006. The petitioner was present in the Court, he filed an affidavit and one witness was also examined. Thereafter the suit was withdrawn on the statement of counsel representing the petitioner in the trial Court. It is the case of the petitioner that he never instructed his counsel to withdraw the suit on 30.5.2006. The petitioner came to know the Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 withdrawal of the suit when he inspected the file. The petitioner had filed review application for recalling the order dated 30.5.2006. 3. The application was contested by the respondents. The Court below dismissed the application of the petitioner on 4.9.2008 for recalling the order dated 30.5.2006. The petitioner has assailed the order dated 30.5.2006 on the grounds that petitioner had never made a statement in the Court for withdrawal of the suit though he was present in the Court, nor he instructed his counsel to withdraw the suit. The counsel representing the petitioner had withdrawn the suit by mistake. The Court below while rejecting the prayer of the petitioner for recalling the order dated 30.5.2006 has ignored the pleadings and the evidence which was led on the review application. It has been alleged that order dated 30.5.2006 has caused miscarriage of justice. 4. Heard and perused the record. The petitioner has not denied the fact that on 30.5.2006 he was present in the court. The case of the petitioner is that on 30.5.2006 he had not made any statement for withdrawal of the suit nor he instructed his counsel to withdraw the suit on the said date. It has been submitted by learned counsel for the petitioner that counsel representing the petitioner in the Court below on 30.5.2006 came in the Court and by mistake made the statement for withdrawal of the suit. It has been submitted that petitioner came to know withdrawal of the suit only after inspection of the record. It is not the case of the petitioner that he could not understand what his counsel had stated in the court when the suit was withdrawn. The submission of learned counsel for the petitioner that in confusion the counsel for the petitioner in 3 lower Court had made statement for withdrawal of the suit has no force. 5. AW-1 C.M. Katoch, Advocate was the counsel who represented the petitioner in the suit. He has stated that Mr. N.K. Sood, Advocate was the counsel representing the HRTC. He entered the court room when the case was called, Mr. N.K. Sood at that time told him that the petitioner had filed other case also against the HRTC. He withdrew the suit on behalf of the petitioner by mistake. The statement of AW-1 is not inconsonance with the case projected by the petitioner. It is the case of the petitioner that he was present in the court and on that date his statement was recorded. It means the proceedings on that date were going on for some time in the Court. It is not the case of the petitioner that his statement was recorded in the court in absence of his counsel. It means the counsel for the petitioner was very much there in the Court when the proceedings were going on and not that counsel for the petitioner rushed to the Court when the case was called. The counsel representing the petitioner in the Court below took conscious decision for withdrawal of the suit. 6. The counsel representing the petitioner had the authority to withdraw the suit. In fact AW1 in his statement has stated that he had the Power to withdraw the case on the basis of Power of Attorney. There is no error apparent on the face of record to review the order dated 30.5.2006 and to restore the suit. The learned counsel for the petitioner has submitted that the suit was only for permanent prohibitory injunction. The suit has not been decided on merits. The withdrawal of the suit shall in no case 4 debar the petitioner for filing new suit for permanent prohibitory injunction on fresh cause of action. In these circumstances, it cannot be said that by withdrawing the suit any prejudice has been caused to the petitioner. There is no merit in the revision which is accordingly dismissed. ( Kuldip Singh) Judge August 21, 2009 (sks)