KASHMIR SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Heard.

(2.) By way of this petition, the petitioner has challenged the order passed by the Court of learned Civil Judge, Court No. 3, Una, in CMA No 292 of 2016, in Civil Suit No. 61/2015, vide which learned trial Court dismissed the application filed under Order 23, Rule 1 (3) of the Code of Civil Procedure (for short 'CPC') by the present petitioner whereby the petitioner (applicant therein) had prayed that he be permitted to withdraw the suit so filed by him with liberty to institute a fresh suit on the same cause of action.

(3.) A perusal of the application which was filed under Order 23, Rule 1 (C) of Civil Procedure Code before the learned trial Court claimed that the reasons which were mentioned in the said application were that initially the suit instituted by the applicant was for declaration to the effect that petitioner/plaintiff was owner in possession of the suit land as he had perfected his ownership over the same by way of adverse possession, but in the course of preparation of the replication, the plaintiff realized that the suit land in fact was part and parcel of old khasra No. 31/5/1 which had earlier been in the ownership and possession of his father, who had purchased the same from one Mohinder and due to preparation of illegal record by the field staff of Department of Settlement, area of ownership and possession of the plaintiff barring Khasra No. 31/5/1 had been disturbed and dislocated wrongly and illegally. In this background, application was filed with a prayer that as there was a formal defect which had crept on account of preparation of illegal record by the field staff of settlement department, accordingly, he be permitted to withdraw the civil suit with liberty to file fresh on the same cause in the interest of justice.