Sabina, J. - (1.) BY way of this petition, petitioner has challenged the order dated 15.9.2011 (Annexure P -3), passed by the Appellate Court, whereby application moved by the petitioner under Order 23 Rule 1 of the Code of Civil Procedure, 1908 (CPC for short) was dismissed. Learned counsel for the petitioner has submitted that the trial Court had, itself, found that there was technical defect in the suit. Hence, the Appellate Court should have allowed the petitioner to withdraw the suit in question with permission to file a fresh one on the same cause of action. In support of his arguments, learned counsel has placed reliance on the decision of this Court in M/s. Manohar Cold Storage and Ice Factory v. Baldev Singh and others : 2010 (3) Civil Court Cases 0481, wherein, it was held as under: - - 23. Reverting back to the facts of the present case; The trial Court has specifically recorded in para 19 of its judgment that "it is not deciding issue Nos. 1 and 2 which are the issues on merits. Issue Nos. 6 to 9 are decided against the plaintiff and against the defendants respectively. Only issue Nos. 3 and 4 have been decided against the plaintiff on the basis of which suit has been dismissed, wherein the trial Court has observed that mere suit for injunction is not maintainable as the plaintiff was also required to seek declaration as well because the defendants have alleged that Manohar Singh was not the managing partner of the firm. Thus, holding the suit to be not maintainable for want of seeking another prayer by the plaintiff is a formal defect which can be allowed to be cured by the plaintiff by way of withdrawing the appeal and to file fresh suit on the same cause of action is well in accordance with law. The judgments cited by learned counsel for the respondents in the case of Darshan Singh v. Kartar Singh and Bawa Singh v. Smt. Tej Kaur (Supra) are distinguishable on the point that if there is no technical or formal defect in the suit and the finding has been returned by the trial Court on merits touching the rights of the parties, permission to withdraw the suit at the stage of appeal with permission to file fresh suit on the same cause of action cannot be given as a valuable right is already vested in the other side."
(2.) LEARNED counsel for the respondent, on the other hand, has submitted that the petitioner had failed to specify the formal defect in the suit in the application under Order 23 Rule 1 CPC. Hence, the Appellate Court had rightly dismissed the application moved by the petitioner under Order 23 Rule 1 CPC. In support of his arguments, learned counsel has placed reliance on Veerbhadrappa v. Mahalingappa and others : 2009 (3) Civil Court Cases 0547, wherein, it was held as under: - - 13. It is essential for the plaintiff to make out a ground seeking withdrawal of the suit for presenting a fresh suit on same cause of action. The plaintiff is required to disclose nature of formal defect in the application and if the application remains silent on this material point, such an application cannot be entertained by the court. In the instant matter, I find that the application tendered by the plaintiff do not satisfy requirements of Order XXIII, Rule 1(3)(a) and as such, the first Appellate Court was not justified in permitting the plaintiff to withdraw the suit with liberty to present fresh suit on the same cause of action. Petitioner had filed a suit for permanent injunction to the effect that the defendant be restrained from interfering and dispossessing the plaintiff from the house in dispute forcibly and illegally. On the pleadings of the parties following issues were framed by the trial Court: - - 1. Whether the plaintiff is entitled for permanent injunction as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has got no locus standi to file the present suit? OPD
(3.) WHETHER the suit is bad for misjoinder and non joinder of necessary parties? OPD;