DHARAMPAL Vs. NODHAR RAM

JUDGEMENT

(1.) By means of this petition under Art. 227 of the Constitution of India, the petitioner has challenged the order dated 24.5.2011 passed by the learned Civil Judge (Junior Division), Court No.7, Shimla rejecting the application filed by the petitioner (hereinafter referred to as the plaintiff) seeking permission to withdraw the suit with liberty reserved to the 2 plaintiff to file a fresh suit on the same cause of action.

(2.) Such an application can only be allowed if there is a formal defect in the suit on account of which the suit must fail. In the application, it was pleaded that there are two formal defects in the suit; firstly that since detailed description of the property was not given, the suit may fail on this ground; secondly, it was submitted that after filing of the suit, the defendant had transferred the ownership of the suit land in favour of one Sh.Vijay Singh and, therefore, Vijay Singh is also necessary party to the suit. These are the only two formal defects pointed out in the application.

(3.) As far as the second defect is concerned, Sh.Vijay Singh has now been impleaded as defendant in the suit and, therefore, this excuse is no longer available for withdrawal of the suit.