AMRIK SINGH Vs. PRITAM SINGH

JUDGEMENT

(1.) This revision petition is directed against the order of the trial Court dated January 5, 1982, whereby Pritam Singh, plaintiff-respondent, was allowed to withdraw his suit with permission to file a fresh suit on the same cause of action on payment of Rs. 100/- as costs.

(2.) The plaintiff filed the suit for declaration and mandatory injunction on the 17th February, 1975. The said suit was still pending when the application for amendment of the plaint under Order 6 rule 17, Code of Civil Procedure, (hereinafter called the Code), was filed on behalf of the plaintiff wherein it was prayed that to be allowed to amend the plaint as to claim the relief regarding possession of the property as detailed in paragraph 4 of the head-note of the plaint which could not be claimed earlier through inadvertence. That application was allowed by the trial Court vide order dated December 16, 1981, on payment of Rs. 400/- as costs. On January 5, 1982, the counsel for the plaintiff made a statement to the effect that there were formal defects in the suit, the plaintiff was to seek the possession of the property and that the suit was likely to fail due to formal defects, therefore, he be allowed to withdraw his suit with permission to file a fresh suit on the same cause of action. On the said date, the counsel for Beant Singh, defendant, also made a statement to the effect that the defendant had got no objection to the withdrawal of the suit. The trial Court found that there were formal defects in the suit. The plaintiff should have filed a suit for possession whereas the present suit was for declaration, and, therefore, it allowed the suit to be withdrawn with permission to file a fresh suit on the same cause of action on payment of Rs. 100/- as costs. Dissatisfied with the same, Amrik Singh, defendant has filed this revision petition.

(3.) The learned counsel for the petitioner contended that the suit remained pending in the trial Court for more than six years. The plaintiff was allowed even to amend his plaint as to seek the relief of possession vide order of the trial Court dated December 16, 1981. Under the circumstances, there was absolutely no occasion for the trial Court to allow the plaintiff to withdraw his suit with permission to file a fresh suit on the same cause of action. The learned counsel further contended that no application under order 23 rule 1 of the Code was filed as to point out the alleged formal defect in the suit. Thus, argued the learned counsel, the trial Court was not competent to pass the impugned order in the absence of a formal application in that behalf. Besides, according to the learned counsel only the counsel for Beant Singh, defendant, did not object to the withdrawal of the suit and that Amrik Singh, petitioner, never agreed to the same and, therefore, for this reason also, the trial Court could not pass the impugned order. In support of these contentions, the learned counsel relied upon D.A.V. College v. Sarvada Nand Anglo Sanskrit Higher Secondary School, 1967 AIR(P&H) 501 Arjan Singh v. Ishar Singh, 1978 CurLJ 168and Pahara Singh v. Gram Panchayat, Behbal Kalan,1981 PunLJ 254