Punjab-Haryana High Court
Sadhu Ram vs Anto Devi And Ors. on 11 February, 2000
Equivalent citations: (2000)125PLR427
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Vide order dated 21.1.1989 Sub Judge, 1st Class, Jagadhri, allowed the plaintiffs-respondents herein to withdraw the suit with liberty to institute another suit on the same cause of action subject to the payment of Rs. 500/- as costs.
2. Defendant-petitioner herein has assailed this order through this revision.
3. Rulda Ram etc., plaintiffs filed suit for possession by demolition of the construction raised by Sadhu Ram-defendant over the bara measuring 6 Marlas bearing Khasra No. 87, situated in village Sabilpur Jattan, Hadbast No. 360, Teh. Jagadhri, Distt. Ambala per jamabandi for the year 1977-78 on the allegation that the defendant has encroached upon part of the bara. Plaintiffs did not attach any site plan to the plaint to show the portion which the defendant had encroached upon. Plaintiffs were required to produce the site plan indicating the portion of the Bara which had been encroached upon by the defendant.
4. Plaintiffs moved an application under Order 23 Rule 1(3) CPC for withdrawal of the suit with permission to file fresh suit on the same cause of action saying that the non-production of the site plan showing the exact portion which the defendant had encroached upon is a formal defect and owning to this formal defect, suit was bound to fail.
5. Learned counsel for the petitioner submitted that the non-submission of the site plan with the plaint was not a formal defect and therefore, plaintiffs could not have been permitted to withdraw the suit with permission to file fresh suit on the same cause of action. Learned counsel for the petitioner submitted that the Courts have jurisdiction to grant permission to withdraw the suit with liberty to institute another suit on the same cause of action only for reasons falling within the ambit of Order 23 Rule 1(2)(a) CPC or for any grounds which, though they may not be exactly "ejusdem generis" to the same but still are somewhat analogous to them. A plaintiff cannot be allowed to withdraw the suit when he has failed to adduce proper evidence in the suit and when he knows that his suit is bound to be dismissed for want of proof. The court, in granting such a permission on grounds not warranted by law, acts beyond its jurisdiction or at any rate illegally or with material irregularity in the exercise of its jurisdiction. In support of this submission, he has drawn my attention to Bhag Mal v. Master Khem Chand, A.I.R. 1961 Punjab 421. It was submitted that if the plaintiffs had not attached site plan with the plaint showing the portion alleged to have been encroachad upon by the defendant, that was not a formal defect. Learned counsel for the petitioner submitted that non-production of the site plan is not a formal defect. It is case of non-production of evidence in support of their case by the plaintiffs. It is not a sufficient cause to allow them to withdraw suit with permission to file another suit on the same cause of action. In support of this submission, he cited Chander and Ors. v. Gulzari Lal and Ors., (1979) 81 P.L.R. 637. He submitted that plaintiffs' evidence was closed by the Court. Thereafter, they moved application for additional evidence which was also dismissed. They moved application for framing additional issues which was also dismissed. Defendant had also concluded his evidence; At that later state, plaintiffs could not have been permitted to withdraw the suit with permission to file another suit on the same cause of action because if they are permitted to file another suit on the same cause of action at this stage of the case, they would fill up the lacuna which had crept in the suit.
6. In my opinion, the learned counsel for the petitioner rightly submitted that the grant of permission to the plaintiff to withdraw the suit with liberty to file another suit on the same cause of action was not warranted. So, this revision is allowed. With the allowing of the revision, suit gets revived. Respondents-plaintiffs may apply for amendment of the plaint under Order 6 Rule 17 read with Section 151 CPC. Learned District Judge, Ambala will entrust this suit to some Civil Judge posted at Jagadhri for its disposal according to law. Civil Judge, to whom this suit is entrusted for its disposal will summon both the parties and then commence upon the trial of the suit.