RAM KUMAR Vs. KARTAR SINGH

JUDGEMENT

(1.) The learned Additional District Judge, at the appellate stage, allowed the suit to be withdrawn with a permission to file a fresh suit on the ground that it was likely to fail because of a formal defect. Aggrieved thereby, the Defendant has come up in this Revision.

(2.) It is not disputed that no written application making out any ground sufficient in law to grant the permission to institute a fresh suit, was filed. It is highly doubtful if on an oral request such an order could be passed. Even if that may be permissible, the Court would have the jurisdiction to pass the order only if a case is made out that the suit was likely to fail because of some formal defector there are sufficient grounds for allowing the Plaintiff to institute a fresh suit. Obviously, mere reproduction of the words of the statute have no meaning. The order of the Court has to show the facts and the circumstances for forming an opinion that the suit was likely to fail for some formal defect. The impugned order, therefore, has been passed wholly without jurisdiction. The learned Counsel for the Respondent, however, urged that as the counsel for the opposite party never opposed the prayer, the Court was under no obligation to write a detailed order showing as to why the suit was likely to fail because of a formal defect. The learned Counsel for the Petitioner has strongly disputed the making of any such concession by the counsel in the lower appellate Court. Although ordinarily what is stated in the order is presumed to be correct, but in the circumstances of this case it can be reasonably inferred that the stand taken by the learned Counsel for the Petitioner were more probable. It has been repeatedly observed by this Court that the Additional District Judges have a tendency to resort to this short cut of allowing the suits to be withdrawn with permission to file fresh ones to make up their units. Moreover, unless some case was made out showing that the suit was likely to fail because of a formal defect, it was not possible for the counsel for the Petitioner in the Lower appellate Court to make any concession in this regard. Even if for the argument's sake it may be accepted that the counsel for the Petitioner did not make such a concession, that being a concession on a question of law would not bind the party, nor would absolve the Court of its duty to pass an order in accordance with law. The impugned order, therefore, cannot be sustained on the contention raised by the learned Counsel for the Respondent.

(3.) For the reasons above, this Revision is allowed with costs and the impugned order set aside. The case would now go back to the District Judge, Sirsa, for disposal of the appeal in accordance with law. The parties through their counsel have been directed to appear in the Court on February, 16, 1987.