TEK CHAND Vs. DANNO DEVI

JUDGEMENT

(1.) THE facts giving rise to this Second Appeal are that Tek Chand, plaintiff-appellant, field the suit for declaration alleging therein that he was born posthumously after the death of his father Mange Ram. His father owned 704 kanals, 3 marlas of land. He succeeded to this land from him, and was in possession thereof through his tenants. The mutation of inheritance sanctioned in his favour was contested by his collaterals. They raised objection that the plaintiff was not the son of his father Mange Ram. The objection was overruled and the mutation was sanctioned in his favour. Later on, another mutation was entered on Dec. 18, 1969, which was sanctioned on May 26, 1970, in favour of his mother, the defendant. This necessitated the filing of the present suit. The suit was contested on behalf of the defendant wherein the trial Court framed the issues on Oct. 5, 1971. The case was adjourned to Jan. 3, 1972, for the evidence of the plaintiff. His evidence was not presented that day and the case was adjourned to March 28, 1972 on payment of Rs. 20/- as costs. Again, no evidence was produced by him on March 28, 1972 and the case was, consequently, adjourned to May 12, 1972, on payment of Rs. 50/0-as costs. That day also, the plaintiff did not produce any evidence, but filed an application under O. XXIII, Rr. 1 and 2 read with S. 151, Civil P. C. for the withdrawal of the suit with permission to bring to fresh suit on the same cause of action. That application was opposed on behalf of the defendant. However, the learned counsel for the plaintiff made a statement in the trial Court that he did not wish to pursue the application for the withdrawal of the suit, but the plaint itself be rejected because no cause of action subsisted to the plaintiff as during the pendency of the suit, mutation in regard to the suit land had been sanctioned in his favour. The trial Court, after hearing the learned counsel for the parties, accepted the prayer and rejected the plaint vide order dated May 29, 1972. The defendant feeling aggrieved against the said order, filed an appeal in the Court of the District Judge, Karnal. The lower appellate Court accepted the appeal, set aside the order of the trial Court rejecting the plaint and dismissed the plaintiff's suit. Dissatisfied with the same, he has come up in Second Account to this Court.

(2.) THE learned counsel for the appellant, contended that even if the prayer of the appellant for rejecting his plaint could not be accepted, even then, the lower appellate Court could not dismiss his suit. In that situation, according to the learned counsel, the case should have been remanded to the trial Court for decision on merits.

(3.) AFTER hearing the learned counsel for the parties, I find force in the contention raised on behalf of the appellant. In case the lower appellate Court was of the view that in the facts and circumstances of the case the plaint could not be rejected, then, in that situation, the plaintiff's suit could not be dismissed. The only course open to the lower appellate Court was to send the case back to the trial Court was to send the case back to the trial Court for deciding the same on merits. The statement made on behalf of the plaintiff in the trial Court was that his plaint be rejected because according to him to cause of action subsisted to him at that stage of the suit. If that prayer was not acceptable to the lower appellate Court, then it did not mean that the suit was to be dismissed. The suit could only be dismissed either on merits or if the plaintiff applied for the withdrawal of the suit as such without any permission to bring a fresh suit.