SUKHDEV SINGH Vs. INDERJIT SINGH AND ANR

JUDGEMENT

(1.) The present revision petition is directed against the impugned order, whereby an application submitted by respondent No.1/plaintiff, son of the petitioner, for withdrawal of the suit claiming following relief, has been allowed:-

(2.) Today there is no representation on behalf of respondent No.1. This Court on 13/11/2018 passed the following order:- "Respondent No.1 has been served. Respondent No.2 is out of country. Respondent No.1 is the contesting respondent, therefore, service of respondent No.2 is not necessary. Service of respondent No.2 is dispensed with for the present. There is no representation for the petitioner. Adjourned to 15/1/2019. It is made clear that if the arguments are not addressed at the next date of hearing, interim order granted by this Court shall stand vacated." I have heard learned counsel for the petitioner, appraised the paper book and of the view that there is force and merit in the submissions of Mr. Malkeet Singh. It would be apt to extract the provisions of Order 23 Rule 1(3) of the Code of Civil Procedure and the contents of para 3 of the application, which read as under:- ''Provisions of Order 23 Rule 1(3) of CPC (3) Where the Court is satisfied,-- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. Para 3 of the application

(3.) That the present suit has been filed by the plaintiff's attorney, Sukhjinder Singh and not through plaintiff himself. As plaintiff Inderjeet Singh was in Canada, so he could not instruct the attorney properly qua the facts and circumstances of the present case, in right perspective. As there were no clear & proper instructions, the plaintiff's attorney pleaded some facts incorrectly, causing formal defect in the suit and due to the said formal defect the suit would fail. On the change of Counsel, these formal defects were brought to the notice of the applicant and hence this application, Immediately without any delay.'' On juxtaposition of the aforesaid provisions, the application is bereft of the reasons as to how the suit was suffering from formal or inherent defect, entailing cause to withdraw the suit with liberty to file fresh one. In the absence of the same, the application was not maintainable, but the trial Court remained oblivious of the aforementioned provisions, thus, there is grave illegality and perversity. Accordingly, the impugned order, under challenge, is set aside and the revision petition stands allowed.