(1.) This revision is directed against the order passed by the learned Subordinate Judge, Rourkela permitting the plaintiffs to withdraw Title Suit No. 12 of 1979 with liberty to institute a fresh suit on the same cause of action.
(2.) It is necessary to narrate the essential facts in order to appreciate the contentions aised by the rival parties. The dispute between them centered around valuable land measuring Ac.O.18 in Rourkela town which admittedly belonged to the petitioners (Defendants). The opposite parties (plaintiffs) instituted the suit and averred in the plaint that in or about the year 1955, the petitioners leased out the suit land in their favour on annual rent of Rs. 1800/- which they required for the purpose of installation of a petrol delivery station, depot, office and godown. After obtaining the lease and on receiving assurance from the petitioners that the lease was on permanent basis and they shall not be evicted in future, the opposite parties spent a huge amount by constructing buildings for installing the petrol delivery station. They commenced their business in right earnest and continued the same till the year 1979 when petitioner No. 2 being a rich and influential man of the locality attempted in various ways to evict them by force. They asserted that having remained in possession of the suit land for over 12 years they acquired a valid lease hold title and are unevictable. Accordingly, in the suit, they sought for the relief of confirmation of their possession, and for permanent and mandatory injunction against the petitioners. In their written statement, the petitioners denied that they had granted permanent lease of the suit land in favour of the opposite parties in the year 1955. They asserted that in or about the year 1955 they permitted opposite party No. 2, a family friend, to install a petrol delivery station on the suit land as a licensee on condition that he shall vacate the same on demand. Later, opposite party No.2 without their consent, transferred the suit land in favour of opposite party No. 1. It has not been known to them that opposite party No. 2 was carrying on business in petrol on the suit land in partnership with opposite party No. 1. Therefore, the opposite parties did not acquire valid title as permanent lessees in respect of the suit land and were not entitled to the reliefs claimed. On the other hand, the petitioners made a counter claim on the strength of their own title and sought for declaration that the opposite parties were not lessees but, opposite party No. 2 was only a licensee, for recovery of possession after their eviction and for damages at the rate of Rs. 1500/- per month.
(3.) During the pendency of the suit, petitioner No. 2, on 18-8-1979 made a petition to the Court to direct opposite party No. 1 to disclose the names and addresses of persons who constituted the firm. Opposite party No. 1 on 6-9-1979 disclosed the names and addresses of the partners of the firm, such as, Abdul Gafur, Mahavir Prasad Agarwala and Smt. Shiv Kumari Devi. Thereafter the opposite parties on 28-10-1981 made a petition to the trial Court under O.23, R.1, C.P.C. for leave to withdraw the suit and institute a fresh suit on the same cause of action. The grounds set forth in the petition were as follows :- a) Opposite party No.1 is a partnership firm which was registered under S. 59 of the Indian Partnership Act on 21-8-1979 after the suit was instituted on 22-6-1979. Because the partnership firm was not registered on the date of institution of the suit, it was likely to fail. b) The legal heirs of late Rama Chandra Agarwala and late Ramasewak Pandey who took the suit land on rent and started business in the name and style of "M/s. Ramsewak Kasinath' in partnership are necessary parties to the suit and in their absence the same was likely to fail. According to them, the aforesaid defects in the constitution of the suit were formal in nature and so they should be permitted to withdraw the same with liberty to institute a fresh suit on the same cause of action as contemplated in O.23, R.1(3), C.P.C. In a counter, the petitioners opposed the petition on various grounds the details of which are unnecessary to repeat. Suffice it to mention that according to them, the grounds stated in the withdrawal petition were not at all adequate so as to permit withdrawal of the suit with liberty to institute a fresh suit on the same cause of action to their utter prejudice. The learned Subordinate Judge in the impugned order found as follows -