KUNDAN LAL Vs. KRISHANA

JUDGEMENT

(1.) Present petition is challenge to the order dated 4.3.2015, passed by learned Civil Judge (Junior Division), Sirsa, whereby application under Order 23 Rule 1 CPC for seeking permission to withdraw the suit with liberty to file a fresh suit was dismissed. Relevant facts of the case that petitioner had earlier filed suit for permanent injunction restraining the respondent/defendant from alienating the suit property. During pedency of the suit, application was filed seeking permission to withdraw the suit with liberty to file fresh suit for specific performance on the same cause of action on the basis of contract of sale dated 8.3.2013. Respondent contested the application inter alia taking the plea that plaintiff can be allowed to withdraw the suit but no permission can be granted to file fresh suit with same cause of action.

(2.) Learned counsel for the petitioner submitted that agreement of sale was duly executed on 8.3.2013 and the target date for execution of the sale deed was fixed to be 9.6.2013. Suit for permanent injunction was filed on 30.10.2013 and prayer of the petitioner has been declined to file fresh suit on the same cause of action.

(3.) Learned counsel for the respondent submitted that such a permission cannot be granted because petitioner was not in position to point out any formal defect and in fact he should have filed suit for specific performance only and the suit for permanent injunction was filed on 30.10.2013 and present petition be dismissed. In support of his arguments, reliance was placed upon the judgments rendered by this Court in cases Jasmer Singh v. Kanwaljit Singh and Another, 1990 2 RRR 442 and Raj Kumar v. Charan Dass and Others, 2015 178 PunLR 835.