SUBHAS CH. ROY Vs. THE STATE OF TRIPURA

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India is directed against the order dated 05 -06 -2010 passed by the learned Civil Judge (Junior Division), Court No. 1, Agartala, West Tripura whereby the application filed by the petitioner (hereinafter referred to as the plaintiff) for permission to withdraw the suit with liberty to file a fresh one was rejected.

(2.) BRIEFLY stated, the facts of the case are that the plaintiff filed a suit against the defendants -respondents seeking a declaration that he is owner -in -possession of the suit land and had also prayed for a decree for injunction restraining the defendants and their agents from interfering in his possession over the suit land. Later, the plaintiff filed an application in which he claimed that he had been dispossessed from the suit land during the pendency of the suit and, therefore, he may be permitted to withdraw the suit with permission to file a fresh one. The learned trial Court rejected this application only on the ground that there was no formal defect in the suit.

(3.) FROM the record of the trial Court, I find that the suit was at the initial stage and even issues had not been framed. Therefore, the defendants would not be prejudiced by filing of a fresh suit. The suit is being withdrawn not on account of a defect but because of a development which is subsequent to the filing of the suit. The situation may be different where issues have been framed and parties have led evidence because in such a situation if some vital evidence has come in favour of one party or the other, the party who is benefited can claim that the suit should only be permitted to be amended and should not be permitted to be withdrawn. In the present case, since no evidence has been recorded, no prejudice should be caused to either side.