S.S. Sandhawalia, J. - (1.) THE plaintiff respondents had instituted the Civil Suit out of which the present proceeding arises, way back on the 12th of February, 1975. After a protracted trial extending over more than there years, the matter reached culmination and arguments were heard in the fore noon at great length for more than an hour and a half (as noticed by the trial Court itself) and the case was posted for orders after lunch, on the 4th of March, 1978. It was then that the respondents chose to move an application seeking to withdraw the suit with permission to file a fresh suit, on the same cause of action. This was allowed by a brief order which is under revision.
(2.) NOW the material part of Order 23, Rule of the Civil Procedure Code under which the order of the trial Court has been passed is in the following terms : (1) X X X (2) X X X 3) Where the Court is satisfied, - - a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject -matter of a suit or part of a claim. It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Mr. D.S. Bali for the petitioners is on firm ground in contending that the order under revision here cannot even remotely come within either the letter or the spirit of the afore -quoted provision. Relying even on the application made on behalf of the plaintiff -respondents, the learned counsel contends that the mere Inability of the plaintiff's to produce the relevant record or to adduce the adequate evidence to substantiate their case, can obviously be not treated as either a formal defect in the suit or a good or sufficient reason for instituting a fresh suit, on the same cause of action. It is also pointed out rightly that the learned trial Court did not choose even to specify, far from pinpointing, the formal defect for which the suit was likely to fail Again a mere lapse on the part of the plaintiffs to fully describe the suit land is not by itself any ground warranting the grant of permission under Order 23, Rule I of the Civil Procedure Code Counsel for the petitioners was right in contending that the application preferred by the plaintiff -respondents was nothing short of a subterfuge to prolong the agonies of the defendant, when they realised the weakness of their case en merits. The trial Court itself noticed the belated stage at which the application had been presented but slurred it over by making an order for the payment of paltry costs of Rs. 50/ - only. The aforesaid factual position is not in serious doubt and once it is so, along line of precedents fully supports the challenge raised on behalf of the petitioners it appears to me wholly unnecessary to elaborate on a matter which is so plain and reference, if any necessary, may be made to Khiwan Singh etc v. Atma Singh etc, 1971 Cri. L.J. 104. Pritam Singh v. Smt. Gurcharan Kaur, 1971 Cri. L.J. 118 and Sheo Ram Chandgi Ram, 1971 Cri. L.J. 780 which make it manifest that the petitioners herein are entitled to succeed.
(3.) WE accordingly allow this revision and set aside the order under revision. The learned trial Judge shall proceed to decide the case on merits expeditiously, as already considerable delay has occurred owing to the pendency of this revision petition. Parties to appear before the trial court on the 3rd of September, 1979.;