BASANTI Vs. DHIAN SINGH AND ORS

JUDGEMENT

(1.) Being aggrieved and dissatisfied with order dated 13.6.2017, passed by the learned Civil Judge (Sr. Division), Chamba, in CMA No. 239 of 2017, whereby application having been filed by the present petitioner (herein after referred to as "the plaintiff") under Order 23 Rule 1 read with Section 151 CPC, seeking therein permission to withdraw the suit, came to be rejected, plaintiff (petitioner) has approached this Court by way of instant revision petition.

(2.) Briefly stated facts necessary for the adjudication of the present case are that plaintiff filed suit for declaration, injunction and in alternative, for possession, in the Court of learned Civil Judge (Sr. Division), Chamba. It also emerge from the bare reading of the impugned order passed by the Civil Judge that both the parties have already led their evidence in support of their respective claims and matter is pending for final arguments. Before final pronouncement could be made by the learned court below, plaintiff filed an application under Order 23 Rule 1CPC, seeking therein permission to withdraw the suit having been filed by him. Allegedly, respondents (herein after referred to as the defendants No. 1 to 7) had filed partition proceedings before A.C. Ist Grade, Churah, District Chamba, against one Shri Thakus Dass, predecessor-in-interest of the plaintiff. During the pendency of the partition proceedings, aforesaid person namely Thakur Dass expired leaving behind plaintiff as his LR to succeed to the estate left by him.

(3.) Mr. Vikas Rathore, Advocate, representing the plaintiff (petitioner herein) contended that since LRs of deceased Thakur Dass were not brought on record by defendants No. 1 to 7 and as such, order of partition passed by the A.C. Ist Grade, Churah, is a nullity being passed against a dead person. Appeal(s) having been preferred by the plaintiff against the aforesaid order passed by the A.C. Ist Grade, Churah, in the Court of SDO (C), Churah and thereafter, before the Divisional Commissioner, came to be dismissed on the ground that no appeal, if any, could be filed by the plaintiff as he was not party to the partition proceedings. Learned counsel further contended that since factum with regard to the passing of partition order, was not in the knowledge of the plaintiff, he could not lay any challenge to the partition orders passed by the AC Ist Grade, Churah. Omission on the part of the defendants to bring the LRs of deceased Thakur Dass on record in the proceedings of partition, which ultimately came to be decided by the AC Ist Grade, has caused great prejudice to the plaintiff and in case, he is not allowed to withdraw his suit, great prejudice shall be caused to him as he would be debarred from laying challenge to the partition order passed by the AC Ist Grade, Churaha.