NASEEM HUSHAIN Vs. MAHENDER KAUR

JUDGEMENT

(1.) Petitioners have filed this petition challenging the order dtd. 17/2/2014, whereby application moved by the petitioners for permission to withdraw the suit with liberty to file fresh one on the same cause of action, was dismissed.

(2.) Learned counsel for the petitioners has submitted that the petitioners had filed suit for declaration with consequential relief of permanent injunction. Petitioners had impleaded defendant No.1, although, he was already dead at the time of filing of the suit. Thus, there was a formal defect in the suit, which necessitated that the petitioners should withdraw the suit and file a fresh one by impleading correct/necessary parties. In support of his arguments, learned counsel for the petitioners has placed reliance on Indana International Ltd. versus Santana Miguel Fernandes, 2007 (5) BCR 804, wherein it was held as under:-

(3.) Learned counsel for the respondents, on the other hand have opposed the petition and have submitted that, in fact, Virsa Singh-defendant No.1 was not the necessary party and the fact that he was already dead at the time of filing of the suit, had no bearing on the merits of the case.