MANN KAUR Vs. GURDIAL KAUR

JUDGEMENT

(1.) The plaintiff-respondent No. 1 filed a suit for declaration against the present petitioner and defendants-respondent Nos. 2 to 8, to the effect that she was the owner in possession of the suit property. A permanent injunction was also claimed restraining the petitioner and defendant-respondent Nos. 2 to 8, from interfering with the peaceful possession of the plaintiff-respondent. The defendants, in their written statement, contested the suit and raised a number of usual preliminary objections that the plaint did not disclose a cause of action, it was not properly valued for the purpose of Court-fee, some of the defendants were minors, but they had been shown as major and had been impleaded as such and that the suit was not maintainable in the present form. The plaintiff-respondent in her replication controverted the same and reiterated the averments in the plaint. Issues were framed and the suit was at the stage when the plaintiff-respondent had been ordered to adduce his evidence that the plaintiff-respondent after a lapse of one year and about two months from the date of the institution of the suit filed an application under Order XXIII Rule 1, Code of Civil Procedure (hereinafter called the Code), for withdrawal of the suit with permission to file a fresh one on the same cause of action. On this, the following order was passed on October 24, 1977 :

(2.) This order has been challenged in the present revision petition on the ground that the same was not a speaking order and the trial Subordinate Judge did not apply his mind at all to the Scope and ambit of Order XXIII Rule 1(3), under which the impugned order could be passed and, consequently, the impugned order was without jurisdiction. The said sub-rule is reproduced below :

(3.) From the impugned order, it is clear that the suit in this case had been instituted on August 31, 1976, and the impugned order was passed on October 24, 1977. Thus the suit had become more than a year old when the permission to withdraw the suit was granted by the impugned order. According to the instructions issued by the High Court, if any suit becomes more than one year old, the trial Court is required to justify the further pendency of the suit and the adjournments given therein from time to time. It appears to me that the trial Court instead of taking necessary effective steps to expedite the trial of the suit adopted the short cut in allowing the suit to be withdrawn in such injudicious manner so that after the filing of the fresh suit by the plaintiff-respondent, the same will be treated as a new suit. Such a practice on the part of the trial Court has to be deprecated.