PARASH NATH PRASAD Vs. NIRANJAN GHOSH

JUDGEMENT

(1.) Heard Mr. G.P. Bhowmik, learned Senior counsel for the petitioner as well as Mr. G. Baishya, learned counsel appearing for the respondent.

(2.) By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 29.01.2016 passed by the learned Civil Judge, Kokrajhar in T.S. No. 2/2013, thereby rejecting petition No. 1065/2015 dated 19.11.2015 filed by the petitioner under Order XXIII Rule 1(3) read with Section 151 CPC for withdrawal of the suit with liberty to file a fresh suit.

(3.) The learned Senior counsel for the petitioner has submitted that the present suit i.e. T.S. No. 2/2013 was filed for declaration and right of easement. It is submitted that in the suit, the reliefs being right of easement, the said right was sought to be exercised in respect of the road and drain mentioned in the plaint which was under the control and management of the Gossaigaon Town Committee. However, due to inadvertence, the Gossaigaon Town Committee was not made party in the said suit. The learned Senior counsel for the petitioner projects that the plaintiff was unaware of the law in that regard and was totally depending on his engaged counsel and only recently prior to filing of the said application for withdrawal of the suit, the petitioner has come to know about defect of non-joinder of Gossaigaon Town Committee as a necessary party in the suit. It is submitted that the defect of non-joinder of necessary parties cannot be cured in any other manner and therefore, it was imperative on part of the petitioner to make a prayer to withdraw the suit and to file a fresh suit.