BHANDARI Vs. SHIAMU

JUDGEMENT

(1.) This is a revision petition against an order passed by the Senior Subordinate Judge, Bilaspur, permitting the withdrawal of a suit with permission to bring a fresh suit. The suit, as originally filed, was for a declaration that an alienation made by one Gokal would not affect the reversionary rights of the plaintiffs after his death. During the pendency of the suit, Gokal died and thereupon it became incumbent upon the plaintiffs to ask for possession in addition to declaration. The Court below, while conceding that the purpose could be served by allowing the amendment of the plaint, felt that withdrawal of the suit, with permission to bring a fresh suit, would be more 'advisable'. On these premises, it permitted the withdrawal of the suit, with liberty to bring a fresh suit, on payment of Rs. 10/- as costs to the opposite side.

(2.) Learned counsel for the petitioner argued that the order of the Court below was against law inasmuch as there was no formal defect whereby the suit was bound to fail. .Reliance was placed, in this connection, on 'Rameshwar Bakhsh Singh v. Rasul Beg', AIR 1918 Oudh 163 (1)(A), where Lindsay, J. C,, indicated as follows :

(3.) In the present case, however, the facts are different. As already stated, Gokal, defendant, died during the pendency of the suit and, therefore, it became necessary for the plaintiffs to sue for possession along with declaration. The Court below has pointed out that certain other persons had to be impleaded as defendants following the death of Gokal. It may be that the purpose could be served by an amendment of the plaint, but the Court below, in the exercise of its discretion, thought ft' proper to allow the withdrawal of the suit with liberty to bring a fresh suit. In 'Sadeq Reza v. Nawab Asaf, AIR 1931 Cal. 268 (B), a Division Bench of that High Court remarked that: