ARJAN SINGH Vs. ISHAR SINGH ETC

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of Indian has been filed to challenge the order of the learned Sub-Judge 1st Class, Rajpura, dated December 17, 1976 allowing withdrawal of the suit with permission to file a fresh suit. As regular remedy under Section 115 of the Civil Procedure Code is available I propose to dispose of this petition treating it one under the said section.

(2.) The withdrawal of the suit with liberty to file a fresh suit was allowed by the learned Sub-Judge on the concession of the learned counsel for the defendant. This was obviously a concession on a point of law and the defendant as held in Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanastus and others, 1954 AIR(SC) 526, is not bound by such a concession made by his counsel. Apart from that concession, the learned Sub-Judge never recorded a finding that the suit was liable to be dismissed on reasons of some formal defect or that there was some other sufficient ground for allowing the plaintiffs to institute a fresh suit. Therefore, the moment concession made by the learned counsel is withdrawn by the appellant, the order becomes liable to set aside having been passed in violation of the provisions of order 23, rule 1 of the Civil Procedure Code.

(3.) This petition is consequently allowed, the impugned order is set aside and the case is sent back to the trial Court for further proceedings in accordance with law.