BALDEV CHAND Vs. GORKH RAM

JUDGEMENT

(1.) The petitioner challenges the order passed by the learned Civil Judge (Junior Division), Barsar, District Hamirpur, on an application under Order 23 Rule 1(3)(a)(b) read with Section 151 of the Code of Civil Procedure (hereinafter referred to as 'CPC') for permission to withdraw the suit instituted by him. The application was dismissed on 15.5.2012. The petitioner-plaintiff challenges this order by way of present revision inter alia on the pleadings that the learned trial Court has not exercised its jurisdiction in accordance with law and that the application should and ought to have been allowed according to the settled law.

(2.) What was pleaded before the learned trial Court is that there is a 'formal material defect' in the suit as the plaintiff omitted to file suit for the whole land and the suit has only been instituted with respect to one Khasra Number of 1/6th share only out of the whole suit land which is an act of inadvertence and a bona fide mistake. The tatima should and ought to have been filed and that the suit was vague. These are the pleadings in paras 2 and 3 of the application, copy of which has been placed on the record of this case.

(3.) The application was opposed by the respondents where one of the pleadings was that the so called defect can be cured by filing application under Order 6 Rule 17 CPC. It was stated that the defect is not formal and that no permission can be granted to institute the suit.