Romesh Chander and Others vs Gh. Mehdi

Mohammad Yaqoob Mir, J.—Impugned is the order dated 16th of October, 2012 passed by the learned Sub Judge, Poonch in terms

whereof application for withdrawal of the suit has been allowed with permission to file fresh. Respondent-Ghulam Mehdi has filed suit captioned

Ghulam Mehdi v. Romesh Chander and another in the court of learned District Judge, Poonch, which has been assigned to the court of learned

Sub Judge, Poonch for disposal.

In the suit, Ghulam Mehdi (hereinafter referred to as plaintiff) had sought permanent injunction so as to command petitioners (hereinafter

referred to as defendants) to construct the shop after leaving a gap of 3 ft. from the plinth of the house of the respondent (plaintiff) and not to do

the excavation of 2 ft. deep. Furthermore, defendants be asked that the slope of the roof shall not be kept towards the house of the plaintiff and

also while constructing the second floor of the house, no door, window shall be kept on the side of the plaintiff so as to avoid disturbance to his

easementary rights.

Based on the pleadings, trial court has framed the following issues:

Whether the defendants are raising second storey of the shop and thereby causing interruption in light and air to the house of the plaintiff and

interfering in privacy of the plaintiff illegally and without any right? OPP

Whether the plaintiff is using the roof of the shop of the defendants as compound of his house? OPP

Whether the defendants have reused to raise construction of shop by leaving 3 feet space from the house of the plaintiff illegally and without any

right? OPP

Whether the present suit is hit by section 10 of CPC? OPD

Relief to which the plaintiff is entitled? OPP

When the case reached to the final hearing, plaintiff noticing that the shop has been constructed and now, the first floor, if raised, will affect his

easementary rights, has filed an application for withdrawal of the suit with permission to file fresh one so as to incorporate subsequent

developments.

In the application, seeking withdrawal, it has been stated that in case defendants raise construction of the first floor of the shop, same will cause

hindrance and will certainly affect his easementary rights, which have vested to the plaintiff for the last more than 100 years.

The said application was resisted by the defendants on the ground that issue No. 1 is already framed, as to whether raising of second storey will

cause interruption to the air and light to the plaintiff and therefore, no new cause is available.

Learned counsel for the defendants would submit that learned trial court has in an arbitrary manner decided the application. No justified grounds

were available so as to permit conditional withdrawal of the suit when the suit is already pending from the year 2001 and is now at final stage. In

opposition, learned counsel for the plaintiff would submit that issue No. 1 framed would provide words 'raising of second storey'. In fact, it should

have been 'first storey'. Plaint has been written in urdu version. There first floor is written as 'Doosri Manzil', i.e., how it has been recorded as

second storey. In fact, in issue No. 1, in place of 'second storey', it has to be read as 'first floor' and now, the suit has to be decided by the learned

trial court as to whether easementary rights of the plaintiff will get effected by raising of first floor on the constructed shop.

Learned trial court in its order impugned has not recorded any justified ground, which would attract the applicability of Order XXIII Rule 3 of

Civil Procedure Code.

Sufficient grounds must exist for allowing the withdrawal with permission to file fresh. Learned trial court is not clear in the order impugned as to

what were the sufficient grounds so as to allow the application. The order appears to have been passed in haste, as such, liable to be set aside.

Whether to amend the plaint or to withdraw the suit shall be claimed has to be made clear by the plaintiff in his application. In the application, as is

on records, sufficient grounds in view of subsequent developments are not made mention of so as to seek withdrawal with permission to file fresh

one. If that course may not be available, plaintiff otherwise may have right to seek amendment, if required.

Petition allowed. Order impugned set aside. Case is remanded back to the learned Sub Judge, Poonch with a direction to decide the

application for withdrawal afresh and to pass appropriate orders thereon with promptitude. Copy of the order along with records be sent to the

trial court.