Om Parkash vs Bal Mukand

Mehinder Singh Sullar, J.—Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context. As is evident from the record that, initially, petitioner-plaintiff Om Parkash son of Mulkhi Ram (for brevity the plaintiff) had instituted the civil suit on 3.8.2002 against Bal Mukand, Ravinder Kumar s/o Mulakh Raj (respondents-defendant Nos. 1 and 2); Roop Lal s/o Milkhi Ram (respondent-defendant No. 3); Kalian Singh son of Mool Raj (respondent-defendant No. 4); Hukam Chand, Sushil Kumar, Vijay Kumar s/o Diwan Chand (respondents-defendants No. 5 to 7) and Sham Piyari wd/o Diwan Chand (respondent-defendant No. 8) (for short the defendants), for a decree of partition by metes and bounds in respect of the land in dispute. The plaintiff and his counsel suffered a statement that he (plaintiff) does not want to proceed with the suit against defendant Nos. 6. and 7. Consequently, the suit against them was dismissed by the trial Court, vide order dated 11.4.2008. Thereafter, having completed all the codal formalities, the trial Court passed a preliminary decree, by virtue of judgment & decree dated 3.12.2009 (Annexure PI).

Aggrieved thereby, defendant Nos. 1, 2 and 4 filed the appeal, which was accepted, preliminary decree was set aside and the case was remanded back to the trial Court to decide it afresh after permitting them to lead additional evidence, by means of judgment dated 7.3.2011 (Annexure P2) by the appellate Court.

Now, the plaintiff has moved an application (Annexure P3) for permission to join defendant Nos. 6 & 7 in the main suit. What cannot possibly be disputed here is that initially, the plaintiff had field the civil suit against the defendants, including defendant Nos. 6 & 7. He himself had withdrawn his suit against defendant Nos. 6 and 7, vide order dated 11.4.2008. Once, defendant Nos. 6 & 7 were the parties, the suit against them was withdrawn by the plaintiff, preliminary decree was passed and the matter was remanded back to the trial Court by the appellate Court, in the manner depicted here-in-above, in that eventuality, the plaintiff cannot possibly be permitted to again join defendant Nos. 6 and 7 in the main suit at this belated stage.

Moreover, the trial Court has correctly dismissed the pointed application of plaintiff, by virtue of impugned order dated 26.11.2011 (Annexure P4), which, in substance, is as under:--

"The present suit has been pending since 3.8.2002. Plaintiff himself had withdrawn the suit against defendants No. 6 and 7 by suffering statement on 11.4.2008. The case is fixed for arguments. At this stage plaintiff wants to proceed against defendants No. 6 and 7. This will amount to re-opening of the case. If there is any formal defect of the suit, plaintiff has a right to move application for withdrawal of the suit with permission to file on the same cause of action. But once suit has been withdrawn against defendants No. 6 and 7, the present application at this stage is abuse of process of law. Therefore, application is dismissed."

Meaning thereby, the trial Court has examined the matter in right perspective and recorded the cogent grounds in this behalf. Such order, containing valid reasons, cannot possibly be interfered with, in the exercise of superintendence powers of this Court under Article 227 of the Constitution of India, unless and until, the same is illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioner, so, the impugned order (Annexure P4) deserves to be and is hereby maintained in the obtaining circumstances of the case.

No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. In the light of aforesaid reasons, as there is no merit, therefore, the instant petition filed by the petitioner-plaintiff is hereby dismissed as such.