- (1.) Application for impleading Rohit Thapar, Advocate, as party is dismissed.
(2.) The Petitioner, who himself is an Advocate had filed a suit for mandatory injunction against the Defendant- Respondents praying that possession of the land in dispute should be restored to him and a declaration should be granted that agreement and lease deed executed between Plaintiff-Petitioner and the Defendant-Respondents in respect of the property on which brick kiln had been installed were liable to be cancelled. Besides this, the Plaintiff- Petitioner had sought a decree for grant of damages to the tune of '32,34,040/- with interest. On March 18, 2008, the trial Court passed the following order: Present: Plaintiff Harkirat Singh in person. Sh. Rohit Thapar, Adv. counsel for the Defendant. Both the Ld. Counsel for the parties have stated that the matter has been compromised and Defendant Inderjit Singh and his counsel Sh. Rohit Thapar, Adv. have suffered statement that as per the compromise, he has handed over the possession of the entire suit property to the Plaintiff Harkirat Singh Mangat and that as per the compromise, all the cases have been withdrawn. Plaintiff Harkirat Singh has also made a statement that he has taken the physical possession of the property as handed over by the Defendant to him today and he withdraw all the proceedings pending in this Court in this case, however, he reserve his right for recovery of the amount against the Defendant on the same cause of action as permitted by the court. In view of the matter having been compromised and the statements so recorded by both the parties, the present suit of the Plaintiff and counter claim of Defendant and all the proceedings arising thereof are ordered to be dismissed as withdrawn. Plaintiff if so advised, is at liberty to initiate the recovery proceedings against the Defendant on the same cause of action. File be consigned to record room.
(3.) A perusal of the abovesaid order indicates that the Plaintiff Petitioner had allegedly made a statement that he had taken physical possession of the property as it had been handed over to him by the Defendant- Respondents, he had withdrawn all the proceedings reserving his right for recovery of the amount due from the Defendant on the same cause of action. The trial Court had jurisdiction under Order 23 Code of Civil Procedure to permit the Plaintiff-Petitioner to withdraw the suit or abandon part of claim as per Order 23 Rule 1 Code of Civil Procedure. At the same time, the trial Court had a jurisdiction to grant permission to the Plaintiff to institute fresh suit for the same subject matter or for part of his claim as per provisions of Order 23 Rule 3(b) Code of Civil Procedure subject to imposition of some costs for filing fresh suit in respect of the same subject matter.;