BALARAM THAPA Vs. HIMADRI BUILDERS LIMITED

JUDGEMENT

(1.) The present application under section 115 of the Code of Civil Procedure is directed against the order dated 09.8.2006 passed by the learned Civil Judge, Junior Division, Jalpaiguri in Title Suit No. 205 of 2004.

(2.) Learned Court by the said order allowed an application filed by the opposite party/plaintiff under Order 23 Rule 1 [sub-rule (3)(a) & (b)] of the Code of Civil Procedure thereby allowing the plaintiff/petitioner to withdraw the suit with liberty to sue afresh. Being aggrieved by such order, Mr. Basu appearing as learned Counsel for the petitioners submits that the learned Court failed to appreciate the matter in its proper perspective and there could be no scope nor any justification for allowing such prayer for withdrawal with leave to sue afresh. In this context, Mr. Basu has invited attention of this Court to the earlier prayer for amendment of the plaint as was made by the opposite party/plaintiff and according to Mr. Basu, the said prayer for amendment having been rejected, the opposite party/plaintiff, in a roundabout manner, has sought to seek redress. According to Mr. Basu, the ground as mentioned in the application for such withdrawal of the suit with leave to sue afresh cannot be said to any formal defect within the scope and meaning of Order 23 Rule 1 [sub-rule (3)(a) & (b) of the Code].

(3.) In response to this, learned Counsel for the opposite party refers to a decision in a case of Narain vs. Rewati, reported in AIR 2004 Punjab and Haryana 275. The said case, however, relates to an application for withdrawal of the suit with liberty to file fresh suit to set up plea of misrepresentation or fraud. The said decision does not seem to have any application to the facts and circumstances of the present case.