RISALA Vs. DEVA

JUDGEMENT

(1.) This revision petition is directed against the order of the trial Court dated March 31, 1989, whereby the plaintiff was allowed to withdraw the suit with permission to file a fresh one subject to payment of Rs. 100/- as costs.

(2.) The plaintiff filed the suit for permanent injunction on August 31, 1982. It remained pending up to the year 1989. Arguments were heard on March 18, 1989, then on March 27, 28 and 31, 1989, when the impugned order was passed. Nothing has been stated in the impugned order as to the formal defect in the suit for which the suit could be allowed to be withdrawn. However, the statement made by the counsel for the plaintiff before the trial Court was that the plaintiff would suffer irreparable loss as the suit suffered from non-joinder of necessary parties. This statement was controverted by the counsel for the defendants, who stated that there was neither non-joinder of parties nor there was any formal defect in the plaint for which the plaintiff could be permitted to file their suit on the same cause of action. In spite of this the trial Court allowed the plaintiff to withdraw this suit by the impugned order.

(3.) After hearing the learned counsel for the parties, I find merit in this revision petition. It was held by the Division Bench of this Court in Chander's case that the trial Court should specify formal defect in the order granting permission to institute fresh suit. If no such defect is pointed out in the impugned order, the Court will be deemed to have acted illegally and with material irregularity in the exercise of its jurisdiction. As observed earlier, there is nothing in the impugned order as to what was the formal defect in the suit.