Naranjan Singh vs Lehna Singh

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court dated December 4, 1984, whereby the application for withdrawing the suit with permission to file a fresh suit on the same cause of action was allowed on payment of Rs. 400/ as costs.

The plaintiffs filed the suit for the grant of the declaration and permanent injunction. In the written statement, an objection was taken that vide order dated November 4, 1982, the plaintiffs were allowed to withdraw the earlier suit on payment of Rs. 50/ as costs. Since the same were not paid, the suit as such was not maintainable. Immediately, the plaintiffs moved the application for withdrawing the present suit on the allegations that the suit was liable to fail on account of the nonpayment of costs and that being a formal defect, they may be permitted to withdraw the suit with permission to file a fresh suit on the same cause of action. That application was contested on behalf of the defendants. However, the learned trial Court found that there was every likelihood of the suit failing as there was a technical defect therein and on the ground alone, the suit of the plaintiffs was liable to fail. Consequently, the application was allowed as prayed for on payment of costs of Rs. 400/. Dissatisfied with the same, the defendants have filed this revision petition in this Court.

The learned counsel for the petitioner contended that the suit filed by the plaintiffs earlier, was allowed to be withdrawn on payment of Rs. 50/ as costs vide order dated November 4, 1982. Thereafter, they filed another suit No. 459 of November 4, 1982. That suit was dismissed for nonprosecution vide order dated January 20, 1983 under Order IX Rule 2, Code of Civil Procedure. The plaintiffs then filed another suit on January 5, 1984, which was also allowed to be withdrawn by the trial Court vide impugned order. According to the learned counsel, the plaintiffs have now filed the suit for the fourth time which is still pending in the trial Court. Thus, argued the learned counsel, the whole conduct of the plaintiffsrespondents speaks for itself and under the circumstances, they were not entitled to withdraw the suit with permission to file a fresh suit on the same cause of action. According to the learned counsel when the written statement is filed and the true facts are brought to the notice of the Court, the plaintiffs withdraw the suit on one person or the other and again obtain ex parte ad interim injunction against them. This being their modus operandi, the plaintiffs should not be allowed to abuse the process of the Court.

After hearing the learned counsel for the parties, I do not find any merit in this revision petition.

If all facts alleged by the learned counsel for the petitioners are correct, they will be entitled to take all those objections in the written statement in the suit now filed by the plaintiffs. In case the plaintiffs are abusing the process of the court in the manner alleged, the proper course would be to bring these facts to the notice of the trial Court and to get the ex parte ad interim injunction vacated. So far as the present case is concerned, it could not be disputed that the suit was liable to be dismissed on account of nonpayment of costs and that being a formal defect as contemplated under Order XXIII Rule 1 of the Code, the suit was liable to fail on that ground alone. Under the circumstances, I do not find any justification for interference with the impugned order under Section 115 of the aforesaid Code.

Consequently, this revision petition fails and is dismissed. However, it is directed that in the suit filed by the plaintiffs, the parties will lead evidence at their own responsibility so that the hearing thereof may be expedited.