RAM CHANDER Vs. JATISH CHANDER

JUDGEMENT

(1.) THE defendant has directed this revision petition against the order dated 11.3.1983 of the Senior Subordinate Judge, Narnaul, allowing the plaintiff to withdraw the suit, with permission to file a fresh one on the same cause of action.

(2.) BRIEFLY , the facts are that the plaintiff filed a suit for permanent injunction against the defendant to the effect that he be not restrained from using the common chowk and open yard located in Mohalla Chanduwara Narnaul, as the same is being used for common purposes and he be not restrained from going to the adjoining temple through this open space. The suit was resisted by the defendant by raising formal objection regarding its maintainability due to lack of proper description of the property and for non -impleading the necessary parties. After issues were framed by the trial Court and the case as at the stage of recording evidence of the plaintiff, the latter filed an application for permission to withdraw the suit under the provisions of Rule 1, Order 23 of the Code of Civil Procedure (hereinafter referred to as the 'Code') contending that the property in dispute had not been properly described in the plaint and the necessary parties had not been impleaded,

(3.) MR . Sarin, learned counsel for the petitioner contended that the mis description of the property or non impleading of necessary parties are not formal defects for allowing the withdrawal of the suit with permission to file a fresh one on the same cause of action. He has relied upon the finding of the Division Bench of this Court in Chander etc. v. Gulzari Lal etc., (1979) 81 P.L.R. 634, as well as the finding of the Bombay High Court in the Asian Assurance Co. Ltd. v. Madholal Sindhu, A.I.R. (37) 1950 Bom. 378. Mr. Chandra Singh, learned counsel for the respondent, on the other hand supported the finding of the trial Court by contending that wrong description of the property and non -impleading of necessary parties are certainly formal defects and would result in the failure of the suit. Reliance in this regard has been placed on the finding of this Court in Joginder Singh v. Mohinder Singh, 1978 R.L.R. 197.