MAN INDER KAUR Vs. JASMEL KAUR AND OTHERS

JUDGEMENT

(1.) THE property in dispute belonged to one Gurdial Singh deceased. He is stated to have made three wills one after the other. The petitioner is his pre -deceased daughter's daughter and claims to be a beneficiary under a will. The respondents filed a suit for declaration that they were the owners of the land left by Gurdial Singh deceased. Their suit was decreed in part. They filed an appeal before the learned lower appellate Court, which allowed the suit to be withdrawn on the ground that because of the defective pleadings a proper decree had not been passed.

(2.) THE view taken by the learned Additional District Judge, Faridkot, is wholly untenable. Order 23, rule 1, Code of Civil Procedure, does not entitle a Court to allow a party to withdraw a suit with permission to file another after the concerned party has failed on merits. A suit can be allowed to be withdrawn if it is not likely to succeed on on account of some formal defect or on account of some, analogous cause. If the pleadings were defective, it was open to the Court to allow the party concerned to amend the pleadings, after hearing the opposite party. If there was some ambiguity in the decree, it was the duty of the learned lower appellate Court to remove that ambiguity On such pleas the suits cannot be allowed to be withdrawn. The order passed by the learned appellate Court is outside the scope of Order 23, rule 1, Code of Civil Procedure which deserves to be set aside and I order accordingly. The case will now go back to the learned lower appellate Court for a fresh decision in accordance with law. The parties through their Learned Counsel are directed to appear before the said Court on September 8, 1975. The petitioner will also have her costs.