- (1.) This revision petition is directed against the order of the trial Court dated March 31, 1989, whereby the plaintiff was allowed to withdraw the suit with permission to file a fresh one subject to payment of Rs. 100/- as costs.
(2.) The plaintiff filed the suit for permanent injunction on August 31, 1982. It remained pending up to the year 1989. Arguments were heard on March 18, 1989, then on March 27, 28 and 31, 1989, when the impugned order was passed. Nothing has been stated in the impugned order as to the formal defect in the suit for which the suit could be allowed to be withdrawn. However, the statement made by the counsel for the plaintiff before the trial Court was that the plaintiff would suffer irreparable loss as the suit suffered from non-joinder of necessary parties. This statement was controverted by the counsel for the defendants, who stated that there was neither non-joinder of parties nor there was any formal defect in the plaint for which the plaintiff could be permitted to file their suit on the same cause of action. In spite of this the trial Court allowed the plaintiff to withdraw this suit by the impugned order. Learned counsel for the petitioner submitted that there was no issue as to whether the suit is liable to be dismissed for non joinder of the necessary parties. In the absence of any such issue, it would not be held that the suit suffered from any formal defect. Moreover, argued the learned counsel, there was nothing in the impugned order as to what was the formal defect on which the trial Court allowed the suit to be withdrawn. Thus it was maintained that the trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction. In support of this contention, reference was made to Pahara Singh and Others v. Gram Panchayat of village Behbal Kalan and others,1981 PunLR 466, Chander and Others v. Gulzari Lal and Others, 1979 81 PunLR 637 and Niranjan Dass and Others v. Prem Parkash Bansal,1978 HinduLR 80.
(3.) After hearing the learned counsel for the parties, I find merit in this revision petition. It was held by the Division Bench of this Court in Chander's case that the trial Court should specify formal defect in the order granting permission to institute fresh suit. If no such defect is pointed out in the impugned order, the Court will be deemed to have acted illegally and with material irregularity in the exercise of its jurisdiction. As observed earlier, there is nothing in the impugned order as to what was the formal defect in the suit.;