D.V. Sehgal, J. - (1.) BHIRO plaintiff -Respondent filed a suit on 25.4.79 for a decree for possession of agricultural land measuring 120 Kanals described in the heading of the plaint situate in village Bagrian against Dalip Kaur and Surjit Kaur, now Petitioners. She alleged that one Surta Singh son of Arjan Singh deceased was the owner of the suit land. Be was murdered on 20.3.1976. She was his legally wedded wife. At the time of death of Surta Singh, she was away at her parental village Dhotian and in her absence both the Defendants, who are the real sisters of Surta Singh deceased, entered into illegal possession of the suit land as also the house owned by him claiming themselves to be his natural heirs, and also got mutation with respect to his inheritance sanctioned in their favour in connivance with the Revenue authorities. The suit was contested by the Defendants who filed their written statement dated 16.5.1980. They denied that the plaintiff was the legally wedded wife of Surta Singh. They instead alleged that she was the wife of one Ajit Singh and she gave birth to a son named Gurmukh Singh on 10.4.1974 and a daughter later on 25.12.1975. The learned trial Court framed issues arising out of the pleadings of the parties and after a full dressed trial dismissed the Plaintiff's suit. She filed an appeal which came up for hearing before the learned Additional District Judge, Amritsar, before whom she moved an application under Order XXIII, Rule 1, Code of Civil Procedure, for allowing her to withdraw the suit with permission to file a fresh one on the ground that there was a technical defect in the suit. The learned Additional District Judge vide his judgment dated 6.1.1983 observed that the plaintiff wanted to show that a daughter Dhanwant Kaur was born to her from the loins of Surta Singh and that if ultimately it is found that she is the widow of Surta Singh then the decree passed in her favour would be the extent of her share even if it be held that her daughter Dhanwant Kaur was born to her from the loins of Surta Singh. He further observed that it would be open to baby Dhanwant Kaur to agitate the matter afresh and in any event she would not be bound by any decree, she having not been impleaded as a party in the case if she proves herself to be the daughter of Surta Singh. According to the learned Additional District Judge, this would amount to opening a new door of ruinous litigation and that the non -impleading of Dhanwant Kaur is a defect of normal technical nature. He, thus, allowed the plaintiff to withdraw the suit with permission to file a fresh one. The Defendants have challenged the aforesaid order of the learned Additional District Judge through the present petition.
(2.) AFTER hearing the learned Counsel for the parties, I have reached at the conclusion that the learned Additional District Judge has committed material irregularity and illegality in the exercise of his jurisdiction while allowing the suit with permission to file a fresh one. Order XXIII, Rule 1, Code of Civil Procedure lays down that before an order allowing the suit to be withdrawn with permission to file a fresh one is passed the essential ingredients mast be fulfilled: - (1) The Court must be satisfied that the suit suffers from some formal defect; (2) the suit must fail on account of the said defect; and (3) or, in alternative, there was sufficient ground for allowing the Plaintiff to file a fresh suit for the same subject -matter. The Court has to apply its mind whether the conditions enumerated above are satisfied. In the absence of the same, it has no jurisdiction to permit the suit to be withdrawn with liberty to file a fresh one on the same cause of action or in respect of the same subject -matter. It has been held by this Court in Pahara Singh and Ors. v. Gram Panchayat of Village Bechal Kalan, (1981) 83 P. L. R 466. that a misjoinder or a non joinder of a party is no ground for allowing withdrawal of the suit with permission to file a fresh one. The Plaintiff can seek to implead a party which ought to have been joined in the suit and can ask for deleting the name of any one from the array of parties which has been wrongly joined in the suit.
(3.) IT appears that the learned Additional District Judge did not apply his mind to the facts of the present case. The fact that a daughter was born to the Respondent was brought on the record and has been discussed by the learned trial Court in its judgment. An entry from the register of births pertaining to this daughter having been born to the Respondent is Ex D3 on the record. Earlier to this, she gave birth to a son on 10.4.1974, who according to her had died. The learned trial court has discussed this matter thus - Both these documents, Ex. D. 1 and D 3, duly supported and corroborated by the unquestionable and unchallanged testimony of DW 3 to 6 have sufficiently falsified and nullified her case on this point by establishing that a son, Gurmukh Singh, was born to the Plaintiff out of her wedlock with the said Ajit Singh of village Sohawa, as back as on 10.4.1974 (Ex, D. 1) and a daughter, who has been admitted to be alive even by the Plaintiff, was born to her from the said Ajit Singh on 25.12.1975 (Ex. D. 3). Bit as has been proved from Ex. D 2, deceased Surta Singh died on 27.3.1975. So, had the Plaintiff been his legally wedded wife, then she could not at all conceive or give birth to a male child of Ajit Singh of village Sohawa on 10.4.1974. This sufficiently proves that even before the death of the deceased, the Plaintiff was residing with the said Ajit Singh of village Sohawa as his wife and therefore she cannot be held or taken to be the wife/widow of deceased Surta Singh at all. Thus, the Respondent having given birth to a daughter is not only proved on the record of the trial Court but has also been discussed in its judgment. It is a different matter that on the basis of the evidence on the record the Respondent may be able to establish that she gave birth to a daughter from the loins of Surta Singh, but the fact that she did not join her daughter while filing the instant suit is not a defect of technical nature for which the suit is likely to fail. She may, if so advised, make an application for joining her daughter as a Plaintiff or proforma Defendant but on this ground she ought not to have been allowed to withdraw the suit. The learned Counsel for the Petitioners has brought to my notice that no objection was ever raised by the Defendant -Petitioners to the effect that the suit was had for non -joinder of any party to it. The Respondent could not of her own state that her suit was bad for non -joinder of parties simply because she failed to establish her case on merits before the learned trial Court. The law does not permit a party to have a second round of litigation on the basis of a self -conceived defect of technical nature in its suit while the matter is in appeal which is neither raised by the opposite party nor adjudicated upon by the trial court.;