PARVEEN KUMAR Vs. PRABHA SHANKAR

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated 25-81989 whereby the plea of the plaintiff to withdraw the suit without permission to file a fresh suit was declined. The said plea was contested on behalf of defendant on the ground that the partition suit was instituted subsequent to the present suit and that the question of title of the suit property of the instant suit be decided in the present suit. The trial Court found that the present suit being a previously instituted suit cannot be dismissed on the ground that a partition suit qua the larger property which also includes suit property was filed four years later. Voluminous evidence has been recorded in the present suit & the same is at final stage and, therefore, it was not deemed expedient or proper to grant prayer of the plaintiff for dismissal of the suit as withdrawn.

(2.) Learned counsel for the petitioner submitted that the plaintiff wanted to withdraw his suit as contemplated under Order 23 Rule 1(4) and no permission of the Court as such was required. Thus, argued the learned counsel, the view taken by the trial Court in this behalf was wholly wrong and illegal. The Court had thus acted illegally and with material irregularity in the exercise of its jurisdiction.

(3.) On the other hand, learned counsel for the defendant-respondent submitted that the plaintiff could not be allowed to withdraw the suit at this stage and in support of his contention, he referred to Sulakhan Singh v. Daljit Singh and others, 1988 94 PunLR 200