- (1.) Present revision petition under Article 227 of the Constitution of India for setting aside the order dated 06.09.2014 (Annexure P-8) whereby application under Order 23 CPC of petitioner was dismissed and order dated 01.10.2014 (Annexure P-9) vide which prayer for liberty to file the fresh suit was declined.
(2.) Relevant facts of the case that petitioners had filed suit for declaration with consequential relief of permanent injunction. An application was filed under Order 23 Rules 1, 3(a) (b) CPC for withdrawal of the suit with liberty to file afresh on the same cause of action as the petitioners wanted to take the plea that defendants had encroached upon the entire land after dispossessing them. Respondents contested the said application. Earlier also plaintiffs filed an application for amendment under Order 6 Rule 17 CPC and thereafter withdrew the same. Again application for amendment under Order 6 Rule 17 CPC was filed and thereafter application under Order 23 Rules 1, 3(a)(b) was filed without any basis. The Court below while considering the submissions made by learned counsel for the parties dismissed the application for grant of permission to file fresh suit on the same cause of action. Thereafter, plaintiffs made statement before the Court for withdrawal of the suit. At the time of arguments learned counsel for plaintiffs submitted that he be given permission to file fresh suit. The Court dismissed the suit having been withdrawn and as regard to permission to file the fresh suit, plea was taken that order was passed that the said application has already been dismissed on 06.09.2014.
(3.) Learned counsel for the petitioners submitted that order dated 06.09.2014 whereby application for permission to file fresh suit on the same cause of action was erroneously decided and the said application should have been allowed. Reliance was placed upon view taken by Co-ordinate Bench of this Court in case Vinod Kumar Vs. Gurmail Singh and another, 2012 1 RCR(Civ) 539 and Amar Singh Vs. Kashmiri Lal, 2009 2 RCR(Civ) 173.;