MOHINDER SINGH Vs. SANTOKH SINGH AND OTHERS

JUDGEMENT

(1.) Challenge in this petition is to the order dated 23.10.2013 (Annexure P-2) passed by the Civil Judge (Junior Division), Phillaur, whereby application filed by plaintiff-petitioner under Order 23 Rule 1 read with Section 151 CPC for withdrawal of the suit with liberty to file fresh one, has been declined.

(2.) Initially, plaintiff-petitioner filed a suit (Annexure P-1) against his brothers & sisters (defendant-respondents herein) for possession by way of partition of property/house left by his father-Pakhar Singh. Defendantrespondents, in their written statement, had raised an objection that suit for partial partition was not maintainable as there was another property owned by Pakhar Singh which was Gair Mumkin Abadi, measuring 28 marlas. Subsequently, plaintiff-petitioner filed an application for amendment of plaint, which was dismissed vide order dated 16.09.2013. Thereafter, he filed an application under Order 23 Rule 1 read with Section 151 CPC seeking withdrawal of the suit with permission to file fresh one. The said application has been dismissed vide order dated 23.10.2013 (Annexure P-2). Hence, this petition.

(3.) Learned counsel for the petitioner argued that application filed by plaintiff-petitioner under Order 23 Rule 1 CPC has been wrongly declined by the trial Court. There was sufficient ground to allow the same, as plaintiff intends to file a fresh suit by including the other property left behind by his father.