DALJIT KAUR Vs. UJJAGAR SINGH

JUDGEMENT

(1.) THIS is civil revision and has been directed against the order dated 11.10.1999 passed by Addl. Civil Judge (Sr. Division), Baba Bakala, vide which he dismissed the application of the petitioners under Order 23 Rule 1 CPC.

(2.) SOME facts can be noticed in the following manner :- Plaintiffs/petitioners filed a suit for declaration that they are owners in possession of the land measuring 14 kanals 11 marlas fully described in the head-note of the plaint, as per jamabandi for the year 1987-88, situated at village Mahsampur Khurd, Tehsil Baba Bakala and the case set up by the petitioners in brief was that they have become the owners of the property by afflux of time because the predecessor of the defendants did not got the mortgage redeemed within the statutory period. The suit was contested and issues were framed. During trial it transpired to the plaintiffs/petitioners that in fact the mortgage deed was created by Mallha Singh son of Hukam Singh and not by Boota Singh son of Hukam Singh. Further, the case set up by the plaintiffs was that they made an application under Order 6 Rule 17 CPC and prayed that instead of Boota Singh, name of Mallha Singh be substituted because the date of the mortgage-deed is the same i.e. 14.7.1926. Unfortunately for the plaintiffs, the application was dismissed by the trial Court. They approached the High Court and their revision was also dismissed by the High Court, meaning thereby that the order on the application under Order 6 Rule 17, CPC has become final. According to the plaintiffs/petitioner, there was an apparent defect in the suit because they have wrongly relied upon the name of Boota Singh instead of Mallha Singh son of Hukam Singh as the mortgage was created by the predecessor of the defendants namely Boota Singh in favour of Basant Singh, predecessor of the plaintiffs and now they wanted to show that the mortgage was created by Mallha Singh son of Hukam Singh in favour of Jawala Singh, who is the father of Basant Singh husband of Daljit Kaur, plaintiff No. 1. Therefore, the permission should be granted to them to withdraw the present suit and to file a fresh one on the same cause of action. Their application was resisted by the defendants and it was dismissed vide impugned order dated 11.10.1999 for the following reasons as given in the order :-

(3.) I have heard Mr. Arun Palli, Advocate on behalf of the petitioners, Mr. Ajay Lamba, Advocate on behalf of the respondents and with their assistance have gone through the records of this case.