G.C.GARG, J. - (1.) GRANT of an application for withdrawal of a suit with permission to file a fresh suit on the same cause of action has given rise to the present petition.
(2.) RESPONDENT -herein filed a suit seeking a decree of declaration to the effect that decree dated May 30, 1986 suffered by him by fraud and mis-representation and that he continued to be the owner in possession of the suit land. The defendant filed written statement. It was pleaded that decree dated May 30, 1986 was valid and binding on the plaintiff. It was further pleaded that in view of the said decree, the defendant was owner in possession of the suit land and that the suit in the present form was not maintainable. During the pendency of the suit, the plaintiff moved an application dated March 6, 1990 seeking amendment of the plaint to include the relief of possession. This amendment was sought on the ground that the plaintiff had been dispossessed during the pendency of the suit in November, 1989. This application was allowed by the trial court by order dated June 7, 1990 subject to payment of costs. The plaintiff failed to pay the costs within the time allowed. As a result thereof, learned trial court by order dated August 6, 1990 rejected the prayer for amendment. The plaintiff after examining few witnesses moved an application seeking review of the order dated August 6, 1990. This application was dismissed by order dated August 5, 1991. It was thereafter that the plaintiff moved an application under Order 23 Rule 1 Sub-rule (3) of the Code of Civil Procedure seeking permission to withdraw the suit with permission to file a fresh suit on the same cause of action. The trial court allowed the said application. It is how the present revision came to be filed by the defendant. Learned counsel for the petitioner submitted that the trial court acted illegally and with material irregularity in allowing the application for withdrawal of the suit with permission to file a fresh suit on the same cause of action, inasmuch as it did not bring out any formal defect before granting the prayer nor did it indicate that the suit was to fail on account of a formal defect. The learned counsel submitted that at the most the formal defect on account of which the suit was likely to fail was that the plaintiff bad not sought possession of the disputed property and for which he had already been permitted to amend the plaint and act the relief of possession. The suit remained pending for five years and the plaintiff examined as many as five witnesses before moving application for withdrawal of the suit with permission to file a fresh one on the same cause of action Learned counsel further submitted that the plaintiff having been permitted to seek possession of the suit property by allowing his application for amendment of the plant and he having not taken steps to amend the same, could not be permitted to take advantage of his own wrong and withdraw the suit with permission to file a fresh suit on the same cause of action. Learned counsel in support of his above submissions relied upon Banarsi Dass v. Ram Avtar and Ors. , 1978 (1) Rent Law Reporter 89, Risala and Ors. v. Deva, 1990 (1) C. L. J. 287, S. Bhagat Singh v. Satnam Transport Co. Ltd. , A. I. R. 1961 Punjab 278 and Dhandar Singh v. Niranjan Kaur, 1986 P. LJ. 339.
(3.) ON the other hand, learned counsel for the respondent by reference to the provisions of Sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure submitted that permission to file a fresh suit on the same cause of action could be granted if the suit was to fail by reason of formal defect or there were other sufficient grounds for allowing the plaintiff to institute a fresh suit Learned counsel for the respondent further submitted that there were other sufficient grounds for allowing the plaintiff to institute a fresh suit. He pointed out that the plaintiff is an old man having six daughters and this constituted a sufficient ground for permitting him to file a fresh suit on the same cause of action. Learned counsel further submitted that there was a formal defect inasmuch as the plaintiff was entitled to possession but he had not sued for possession. The learned counsel in support of his submission relied upon Kanhyia Lal and Anr. v. Nathu and Ors. , (1989-2)96 P. L. R. 449.;