MOHAN SINGH Vs. BALBIR SINGH

JUDGEMENT

(1.) THIS petition has been filed challenging order dated 11.12.2013 (Annexure P -3), whereby application moved by the petitioner under Order 23 Rule 1 of the Code of Civil Procedure, 1908 (CPC for short) for permission to withdraw the suit with liberty to file a fresh one on the same cause of action was dismissed. Learned counsel for the petitioner has submitted that during the pendency of the suit, petitioner had realised that the relief qua possession was also liable to be claimed by him. Hence, application under Order 23 Rule 1 CPC was moved by the petitioner. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Sant Baba Darshan Singh Sewak Baba Kharak Singh vs. School Beerh Baba Budha Sahib and others : 2006 (2) RCR (Civil) 160 wherein, it was held that even at appellate stage, permission could be granted to the plaintiff to withdraw the suit with permission to file a fresh one on the same cause of action in case of a formal defect. Similar view was taken by this Court in Vinod Kumar vs. Gurmail Singh and another : 2012 (1) RCR (Civil) 539 and in Sunita Chhokra vs. Shanti Devi and others, 2012 (1) Law Herald 860.

(2.) IN the present case, petitioner -plaintiff had filed a suit for mandatory injunction directing the respondents -defendants to construct the wall from point A to B demolished by them illegally and forcibly for carving out a passage through the plot of the plaintiff and for permanent injunction that defendants be restrained from causing any interference in the possession of the plaintiff.

(3.) CASE of the petitioner is that he also needs to seek the relief of possession qua the portion, which was being used by the defendants illegally as a passage.