JYOTI LAL HANDA Vs. O.C. SHARMA

JUDGEMENT

(1.) THIS Petition is directed against the order dated 30.5.2013 passed by Civil Judge (Junior Division), Court No. 4, Mandi in Civil Suit No. 15/2012. "Key facts" necessary for the adjudication of this petition are that respondent -plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) has filed a suit for permanent prohibitory and mandatory injunction alongwith an application under order 39 rules 1 and 2 of the Code of Civil Procedure against the petitioner -defendant (hereinafter referred to as the "defendant" for convenience sake). The parties were directed to maintain status quo vide order dated 5.4.2012. He also moved an application under Section 151 of the Code of Civil Procedure seeking police help. It was dismissed by the trial Court on 19.4.2012. The application under order 6 rule 17 of the Code of Civil Procedure filed by plaintiff was also dismissed on 23.6.2012, Thereafter, he moved an application under order 1 rule 10 of the Code of Civil Procedure to implead the Municipal Council, Mandi as party and to delete the name of Town and Country Planner on 27.6.2012. Contempt petition was also filed against the defendant. It was dismissed by the trial Court on 31.7.2012.

(2.) PLAINTIFF moved an application under order 23 rule 1(3) of the Code of Civil Procedure for the withdrawal of the suit bearing No. 15/2012 with permission to file a fresh suit on the same cause of action. According to the averments contained in the application, the plaintiff has claimed easementary right over the land of the defendant, however, he has not given the description of the land of the defendant. According to him, initially Town and Country Planner was arrayed as defendant but no specific allegations have been made as to why it was impleaded. Thereafter, Municipal Council was arrayed as defendant but plaintiff has not pleaded as to how Municipal Council, Mandi Was a necessary party. Plaintiff did not disclose accrual of cause of action against the Municipal Council, Mandi. According to the plaintiff, there was a formal defect in the plaint which could not be cured by amendment and there was sufficient cause for permitting the plaintiff to withdraw the suit with permission to file fresh on the same cause of action.

(3.) TRIAL Court allowed the application on 30.5.2013 subject to cost of Rs. 600/ -. The plaintiff though has filed a civil suit but has not given the details of the land, on which he was claiming easementary right. Plaintiff though has arrayed initially Town and Country Planner and thereafter the Municipal Council, Mandi, but has not disclosed the accrual of cause of action against them. In these circumstances, the application was filed for the withdrawal of the plaint under order 23 rule 1(3) of the Code of Civil Procedure. The Court is of the considered view that sufficient reasons were assigned for permitting the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action. The defendant has already been compensated by allowing him cost of Rs. 600/ -. The defendant has also failed to establish what prejudice has been caused to him by permitting the plaintiff to withdraw the suit. The suit is at a very initial stage since it was instituted only on 10.2.2012. There is neither any illegality nor any perversity in the order passed by the trial Court. Accordingly, in view of above discussion there is no merit in the petition and the same is dismissed. Pending application, if any, also stands disposed of. No costs.