LAWS(HPH)-1974-4-8

SALI Vs. SANTU ETC

Decided On April 02, 1974
SALI Appellant
V/S
SANTU ETC Respondents

JUDGEMENT

(1.) This revision petition is directed against the order, dated 10-7-1972, passed by the Sub-Judge I Class, Kangra, whereby he permitted the Plaintiff-Respondent to withdraw his suit with permission to file a fresh suit on the same cause of action.

(2.) The Plaintiff had filed a suit against the Defendant for declaration that he was the owner of the suit land and that the Arjan tree also stood within his land and that the Defendants be restrained from interfering with his possession on the land and on the tree. The Defendants opposed the suit. During the pendency of the suit, with the agreement of the parties, the Court appointed Shri K.C. Kaundal Tehsildar Kangra as a Local Commissioner to measure the land and to find out on which Khasra number the Arjan tree stood. The Local Commissioner reported that the tree was not on the land of the Plaintiff but it stood in the Shamilat Tikka land. On this the Plaintiff filed his objections against the report of the Commissioner. Several opportunities for evidence were granted to the Plaintiff-objector but it appears that he did not adduce any evidence. It appears that on 10-7-1972 when the witnesses were not present the Court passed the following order:

(3.) Learned Counsel for the Petitioner has assailed this order on the ground that the Plaintiff-Respondent had failed to bring his case within the ambit of Order 23, Civil Procedure Code, and that the learned trial Judge has illegally exercised the jurisdiction vested in him by law in granting the permission and in passing the impugned order. There was no formal defect by virtue of which the suit could be permitted to be withdrawn.