- (1.)This revision petition is directed against the order of the trial Court dated 31st of January, 1981, whereby the plaintiff-respondent was allowed to withdraw his suit with permission to file a fresh one.
(2.)The suit was ripe for final arguments when the plaintiff-respondent applied to withdraw the suit with a permission to file a fresh one on the same cause of action alleging that Prem Kumar and Dalip Chand, defendants have died and their legal representatives have not been brought on the record and, secondly in this case there is a dispute of location and demarcation of the area and that has not been properly done and as such he would file a fresh one on the same cause of action. The application was resisted on behalf of the defendants but the learned trial Court was of the opinion that the plaintiff cannot be prevented from withdrawing the suit which is for permanent injunction and such a suit could be filed at any time. It has been further held that the file revealed that disputed property has not been properly located and demarcated and the two defendants have also died. In the opinion of the trial Court, a defect of a formal nature has crept into it and, therefore, under these circumstances the plaintiff was allowed to withdraw the suit with a permission to file a fresh one. Aggrieved with this order, the defendant has come up in revision to this Court.
(3.)The learned counsel for the petitioner contended that under no circumstances it could be said that there was any formal defect which would have resulted in the dismissal of the suit and, therefore, the trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction. According to the learned counsel, the suit was ripe for final arguments and the trial Court could not allow the plaintiff to withdrew the suit with permission to file fresh one. In support of his contention, he referred to Gurcharan Singh v. Smt. Nihal Kaur etc., 1975 CurLJ 719 and Angrez Singh v. Gajjan Singh and others,1954 PunLR 42.