KRISHAN KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is a revision petition filed by Krishan Kumar and others plaintiffs against the order dated June 7, 1975 of Sub-Judge Ist Class, Ludhiana, whereby he dismissed their civil suit as withdrawn and refused the permission to them to file a fresh suit on the same cause of action. The facts of the case are that firm Messrs Mulakh Raj Des Raj Chadha, Woollen Yarn Dealer, Dal Bazar, Ludhiana owed some sales-tax amount to the Sales Tax Department of the Punjab Government and for the recovery of that amount, property bearing Municipal unit No. B-IV/573(old)/B-IV/1241 (new) situated in the Brahmpuri, Ludhiana, belonging to the plaintiff was attached on December 20, 1974. Krishan Kumar and others, plaintiffs, who are sons and daughters of Des Raj Chadha filed civil suit in the Court of the Sub-Judge Ist Class, Ludhiana, against the Punjab State for a declaration that the attachment of the said property is illegal, ultra vires, void and without jurisdiction and also prayed for a permanent injunction to restrain the defendants from selling or auctioning or causing the same to be auctioned which is their ancestral residential house and also from taking its forcible possession.

(2.) During the pendency of this suit, the plaintiffs made an application on May 24, 1974, under Order XXIII rule 1(2), C.P.C., for permission to withdrawn the suit and to file a fresh suit in respect of the same subject-matter. It was averred by the plaintiffs that there were some discrepancies in the notice served by them on the defendants under Section 80 C.P.C. and in the allegations in the plaint and that this defect was technical and formal, and, therefore, that may be allowed to the same subject-matter. The application was opposed by the defendants. Following order was passed by the Sub-Judge on this application :-

(3.) Mr. D.S. Keer, learned counsel for the petitioner, contends that this is not a speaking order and no facts of the case and reasons have been given and the same is, therefore, liable to be set aside. Secondly, he argued that the Subordinate Judge could dismiss the application but had no jurisdiction to dismiss the suit because no separate prayer to withdraw the suit had been made. He further contended that the prayer in the application under Order XXIII, rule 1(2), C.P.C., could not be divided and the application could either be rejected or accepted and the Sub-Judge had no business to dismiss the suit. Order XXIII, rules 1(1) and 1(2), C.P.C., reads as follows :-