PHOOL CHAND Vs. SHYAM SUNDER

JUDGEMENT

(1.) The plaintiff has filed the present revision under Article 227 of the Constitution of India for challenging the order dated 29.5.2012 passed by the Additional Civil Judge (Senior Division), Rewari whereby application filed by him under Order XXIII Rule 1 CPC for withdrawal of his suit was accepted but he was not granted any leave for filing a fresh suit. A perusal of the impugned order would reveal that though the petitioner had filed the aforementioned application for withdrawal of the suit but had not specified as to what were the technical grounds or the formal defects for which he wanted to withdraw the suit and then to file a fresh one on the same cause of action. Therefore, the first part of his prayer was accepted by allowing him to withdraw his suit whereas prayer for filing a fresh one was declined.

(2.) Counsel for the petitioner has submitted that as the trial Court did not grant leave to the petitioner to file a fresh suit on the same cause of action, it ought to have declined his application under Order XXIII Rule 1 CPC so that he could continue with the suit itself. The relief claimed by him in his application under Order XXIII Rule I CPC could not have been bifurcated so as to dismiss his suit as having been withdrawn without granting him any leave to file a fresh suit.

(3.) Counsel for respondent No. 1 has submitted that once the petitioner had prayed for withdrawal of the suit, he cannot now turn around to say that if the other relief of filing of fresh suit was not to be granted, his application under Order XXIII Rule 1 CPC should have been dismissed and the suit allowed to proceed further.