KANTA DEVI Vs. JAGDISH CHAND

JUDGEMENT

(1.) By way of this petition filed under Art. 227 of the Constitution of India, the petitioner assails order dated 17.5.2017 passed by the Court of learned Civil Judge (Junior Division), Court No. IV, Hamirpur in CMA No. 494 of 2016 in Civil Suit No. 164 of 2013, whereby an application filed by the present petitioner under Order 23, Rule 1 read with Sec. 151 of Civil Procedure Code praying for permission to withdraw the suit with liberty to institute a fresh suit on the same cause stands dismissed.

(2.) I have heard learned counsel for the parties and have also gone through the documents appended with the petition.

(3.) A perusal of order so assailed by way of this petition demonstrates that after filing of the suit which was filed in the year 2013 and after framing of issues on 6.6.2015 more than five opportunities were given by the Court to the plaintiff to lead evidence but no evidence was led by the plaintiff. In the interregnum, an application was filed by the plaintiff under Order 6, Rule 17 of Civil Procedure Code for amendment of plaint, which also stood allowed by learned Court below. The averments made in the application so filed under Order 23, Rule 1 (3) of the Civil Procedure Code demonstrate that plaintiff had filed said application, inter alia, on the ground that in their written statement defendants had challenged the title of the plaintiff which necessitated the filing of the application under Order 23, Rule 1 (3) of the CPC. Learned Court below while rejecting said application so filed by the present petitioner observed that written statement was filed on 14.11.2013 in which the title of the plaintiff stood disputed by the defendants and no cogent explanation had been given by the plaintiff as to why application under Order 23, Rule 1 (3) Civil Procedure Code was being filed after more than three years of the written statement having been filed. Impugned order further demonstrates that what weighed with learned trial Court while dismissing the application was that the filing of the application was nothing but an afterthought as the same was filed only after learned trial Court had passed order that in case evidence was not led by the plaintiff on the date so fixed, his right to lead the evidence shall be closed.