LAWS(J&K)-1963-10-2

FATEH SHAH Vs. BEGA

Decided On October 08, 1963
Fateh Shah Appellant
V/S
BEGA Respondents

JUDGEMENT

(1.) THIS is an application against an order passed by the trial court allowing the plaintiff to withdraw the suit and arises in the following circumstances.

(2.) THE plaintiff instituted the present suit for declaration on the ground that she was entitled to the properties in question being a Khanna Nishin daughter of the last propensities. The suit was contested by the defendant firstly on the ground that the plaintiff was not a Khana Nishin daughter and, therefore, was not entitled to inherit the property and secondly on the ground that she was not in possession of the property and the suit was, therefore, barred by Section 42 of the Specific Relief Act. Issue on the question of possession was raised but before it could be decided, the plaintiff filed an application for amending the plaint so as to include a prayer for possession The amendment was rejected by the trial court but on revision to this court, it was allowed subject to payment of costs within a particular time. As the plaintiff was unable to pay the costs, the prayer for allowing the amendment stood cancelled. An application was made by the plaintiff for extending time, which was also, rejected. The trial court dismissed the suit but on appeal the appellate court remanded the case for a fresh decision in accordance with law. When the case was received back on remand, the plaintiff filed an application for withdrawing the suit with permission to bring a fresh suit. The trial court after giving cogent reasons has allowed the prayer of the plaintiff for with drawing the suit under order 23 rule 1, Sub clause 2 (b) of the Code of Civil Procedure. The present revision is directed against this order of the trial court.

(3.) THE case was heard in the first instance by a Single Judge of this court who has referred this case to a larger bench in view of conflicting authorities on the scope and ambit of Order 23 Rule 1 (2) of the Code of Civil Procedure.