R.L.ANAND, J. - (1.) THIS is a civil revision and has been directed against the order dated 14.11.1998 passed by the Additional Civil Judge, Senior Division, Hoshiarpur, who allowed the application of the plaintiffs-respondents under Order 23 Rule 1, Code of Civil Procedure for the reasons given in para 4 of the impugned order :- "I have heard the learned counsel for both the parties. The present suit is a simple suit for permanent injunction for restraining defendants 1 to 21 from selling and entering into agreement to sell or transferring suit land in any manner, on the basis of agreement to sell dated 18.7.1995. Three different dates have been fixed to execute sale deeds i.e. 15.11.1995, 15.5.1996 and 31.10.1996. The plaintiff is to seek remedy as per terms of agreement settled between the parties. As per recent trend of decision of our own High Court and as reported in 1998(2) C.C.C. 619 (P&H) titled as "Gulab Rai v. Atam Rai", no injunction can be granted on the basis of agreement and as such, the suit is likely to fail. Even otherwise, as per pleadings of the plaintiff, two defendants have already died before filing of the present suit. There is a formal defect in the present suit. Accordingly, application is accepted and the plaintiff is allowed to file a fresh suit on the same cause of action, subject to Rs. 1000/- as costs, which will be condition precedent."
(2.) SOME facts can be noticed in the following manner. The plaintiffs- respondents filed a suit for permanent injunction against defendants 1 to 21 restraining them from selling, entering into an agreement of sale, transferring in any manner, alienating and disposing of whole or any part or any specific portion or share exceeding their share, more valuable precious part(s) of and the specific Khasra Nos. of joint immoveable agricultural land fully described in the head note of the plaint and it was further prayed that defendant No. 22 be directed not to entertain or accept any registered sale deed/power of attorney executed by all or any of the defendants or any other person on their behalf in respect of the land in dispute. It was the case of the plaintiffs-respondents that defendants 1 to 21 entered into an agreement of sale of land in their favour and they have sold almost all the land to the plaintiffs-respondents. Now defendants are attempting and threatening to sell their remaining land to some other persons to which they have got no right at all in violation of the agreement. With these broad allegations, the plaintiffs-respondents filed a suit for permanent injunction for mandatory injunction. During the pendency of the suit, the plaintiffs-respondents filed an application Under Order 23 Rule 1(3) Code of Civil Procedure for the withdrawal of the suit mainly on the ground that the defendants have raised a preliminary objection that the suit of the plaintiffs is not legally maintainable and defendants 1 to 21 had already expired before the filing of the suit. Notice of the application was given to the defendants. They took the plea that since they have committed breach of agreement, therefore, they are not entitled to permanent/mandatory injunction. It was also pleaded that there is no formal defect in the suit. Lastly, it was prayed for the dismissal of the application. The learned trial Court allowed the application. Not satisfied with the impugned order, the present petition has been filed. I have heard the learned counsel for the parties and with their assistance I have gone through the record of the case.
(3.) ORDER 23 Rule 1(3) lays down that :- "(3) Where the Court is satisfied, - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim." ;