RAM SARUP Vs. SHIVA DEVI

JUDGEMENT

(1.) THE present revision petition has been filed by the plaintiffs, feeling aggrieved by and dissatisfied with the order dated 23.1.2001, passed by Sub Judge (II), Una, on an application under Order 23 Rule 1 of the Code of Civil Procedure, moved in Civil Suit No.29 of 1996, whereby, the said application was dismissed.

(2.) IN brief, the facts are that the plaintiffs, the petitioners herein, had filed a suit for permanent injunction restraining the defendants from causing any interference in any manner or to take forcible possession of the land comprised in khewat khatauni No.934 min/ 1270 min, Khasra No.2527min, measuring 6 kanal, situated in village Polian Beet, Tehsil and District Una, HP, as recorded in the jamabandi for the years 1987-88. The defendants (respondents herein) have denied the ownership and possession of the plaintiffs over the suit land. According to them, it is owned and possessed by the State of Himachal Pradesh. The issues were also framed on 22.11.1996 by the trial court and the matter was at the stage of recording the statements of the plaintiffs' witnesses. An application under Order 23 Rule 1 of the Code of Civil Procedure was moved on 10.5.1999 by the plaintiffs for the withdrawal of the suit with permission to file afresh on the same cause of action. The reason for moving the said application was indicated in para-3, which is as under:-

(3.) AFTER hearing the parties and upon going through the record, the trial court dismissed the application on the ground that the plaintiffs did not specifically plead the formal technical defect in the suit. The contention of the plaintiffs regarding attestation of mutation in the name of different persons who could not be referred in the plaint is not a formal defect, however, on these facts the parties could be added by way of amendment. Since the application did not disclose any formal defect for the withdrawal of the suit with permission to file afresh on the same cause of action, therefore, the application was held to be devoid of any merit by the trial court. The said order has been assailed in this petition on the ground that the defect in Civil Suit No.29/1996 is formal one, which was alleged to be a ground for withdrawing the suit. Since there were allottees of the land in the said Khasra number and in case the permission is granted, they can only be brought on record by filing a fresh suit. Thus prayed for the acceptance of the revision petition.