Full Judgment
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. C Rev No. 40 OF 201.Anil Kumar Maini Petitioners Pankaj Kumar Respondent !Mr. D. K. Khajuria, Advocate ^Mr. Vidya Sagar, Advocate Honble Mr. Justice J.P.Singh, Judge Date:
19. 10.2012 :
: The RespondentPankaj Kumar filed a Suit for Permanent Prohibitory Injunction restraining the petitioner from interfering in the Suit land situated at Ward No. 13 Poonch. His prayer for issuance of ad-interim injunction during the pendency of the Suit was, however, declined by the Court finding him out of possession. The prima facie finding of the Court that the respondent was not in possession of the Suit property, was affirmed by the Appellate Court. The respondent thereafter sought permission to withdraw the Suit with liberty to file fresh Suit on the ground of 2 omission of Khasra Number of the Suit property in the Plaint. Allowing his request, the Trial Court permitted him to file fresh Suit. Aggrieved by the permission allowed to the plaintiff/respondent to file fresh Suit, the petitioner/ defendant has invoked Revisional Jurisdiction of this Court seeking setting aside of the trial Courts order. Relying on Jman Sukh v. Jagdish Chand reported as [2004] 2 Cur LJ(HP) 578, the petitioners learned counsel would submit that there being no formal defect in the Suit, the permission granted by the Trial Court was liable to be set aside being unwarranted. Mr. Vidya Sagar, learned counsel for the respondent-plaintiff, on the other hand, submitted that having not been found in possession of the property, though prima facie it became necessary, in the circumstances, for the respondent to file fresh Suit seeking adjudication of his Rights in the property in question. Considered the submissions of learned counsel for the parties. The Judgment referred to by the petitioners learned counsel may not be of any help to the petitioner, for, the respondents Application could well 3 be considered for its allowance in view of the provisions of Order 23 Rule 1 Sub-rule 3 (b) of the Code of Civil Procedure which vested discretion in the Trial Court to grant permission to a Suitor to institute fresh Suit for the subject matter of the withdrawn Suit. Withdrawal of Suit without permission precludes a Suitor from instituting any fresh Suit in respect of the subject matter of the withdrawn Suit. Therefore, keeping in view the serious adverse consequences flowing from the withdrawal of Suit without permission to file fresh Suit, that may debar a Suitor for all times to come to seek adjudication of his Rights regarding the subject matter, the discretion vested in the Courts for grant of permission to file fresh Suit, needs to be exercised liberally, to advance the cause of Justice in dealing with the merits of the claim of a Suitor rather than showing him door on mere technicalities. Keeping in view the facts and circumstances of the case when the respondent was not found in possession of the property and even otherwise the Suit as such would not proceed without introducing necessary amendment thereto inter alia to seek possession of the Suit property, even if it were to continue as such and the description of the Suit property too was not sufficient to identify it, the 4 permission sought by the respondent was required to be allowed permitting him to seek adjudication of his Rights claimed in the immovable property in question in terms of Order 23 Rule 1 Sub-rule 3 (b) of the Code of Civil Procedure. The discretion exercised by the Trial Court in permitting the respondent to file fresh Suit withdrawing his earlier Suit cannot, therefore, be faulted in the circumstances. However, as the petitioner-defendant was dragged in the Suit which was not, as such, maintainable, the petitioner was required to be compensated for the time spent by him in the unnecessary litigation. The Trial Court has, however, omitted to consider withdrawal and grant of permission to file fresh Suit, on terms as would have been fit in the circumstances. The error committed by the Trial Court in not considering the terms on which permission was to be granted, therefore, needs to be corrected. The withdrawal of the Suit is, accordingly, made subject to payment of Rs.2000/- (Rupees Two Thousand) as costs that would compensate the petitioner-defendant for his contesting the respondentplaintiffs Suit until it was withdrawn. Respondent to pay costs to the petitioner within eight weeks. 5 This Civil Revision is disposed of accordingly on the above terms modifying the Trial Courts order dated 04.03.2011. ( J.
P. Singh ) Judge JAMMU Sunita. 19.10.2012