Rajiv Sharma, J. - This petition is instituted against the order dated 2.7.2015, rendered in Civil Suit No. 241/2013 by the learned Civil Judge (Jr. Divn.), Kandaghat, Distt. Solan, H.P.
2. "Key facts" necessary for the adjudication of this petition are that the respondent-plaintiff (hereinafter referred to as the plaintiff) has filed a suit for possession under Section 6 read with Section 38 of the Specific Reliefs Act, 1963. The plaintiff filed an application under Order 23, Rule 1 CPC seeking permission to withdraw the suit and to file a fresh suit on the same cause of action. According to the averments made in the application, the plaintiff was residing along with his family members at village Biran-Silhari, PO and Tehsil Kandaghat in the house of Shri Jai Ram, defendant No. 8 for the last more than 7-8 years. Shri Jai Ram had been treating the plaintiff as his own son and out of love and affection he executed a legal and valid Will in favour of plaintiff on 7.11.2005. It was duly registered with Sub Registrar, Kandaghat as document No. 66 dated 8.11.2005 thereby bequeathing all his property, including the suit land in favour of the plaintiff. Shri Jai Ram was missing for the last three years and his whereabouts were not known to anyone. The report to this effect was also lodged in the Police Station Kandaghat on 5.5.2007. The defendants have started interfering in his possession and have dispossessed him. A formal defect has crept in as the declaration with respect to Will dated 7.11.2005, executed by defendant No. 8, is required to be taken and due to this formal defect and without seeking declaration with respect to the civil death of defendant No. 8 Jai Ram, the point in controversy between the parties could not be decided properly and effectively. It is further stated that without seeking declaration with respect to civil death, suit of plaintiff was bound to fail on this formal defect.
3. The application was contested by the defendants. The learned Civil Judge (Jr. Divn.), Kandaghat, Distt. Solan, H.P., allowed the application on 2.7.2015. Hence, this petition.
4. I have heard learned counsel for the parties and gone through the records of the case carefully.
5. According to the averments made in the application, it is a formal defect and not a defect of substance. Neither the plaintiff has stated in the suit that Jai Ram has died nor any declaration was sought regarding his civil death. The Will would come into force only after the death of Jai Ram. The defect was technical in nature and no prejudice has been caused to the petitioners-defendants by permitting the withdrawal of the suit and filing a fresh suit as per order dated 2.7.2015. Moreover, the suit is at the initial stage. The suit was bound to fail due to this formal defect.
6. Their lordships of the Hon''ble Supreme Court in the case of K.S. Bhoopathy and others v. Kokila and others, reported in AIR 2000 SC 2132, have laid down the following principles while granting permission to withdraw the suit with leave to file a fresh suit:
"12. The provision in Order 23, Rule 1 CPC is an exception to the common law principle of non suit. Therefore on principle an application by a plaintiff under sub-rule 3 cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule 1, In (he former it is actually a prayer for concession from the Court after satisfying the Court regarding existences of the circumstances justifying the grant of the such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit roust fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order 23 Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or courts below. Grant of permission for withdrawal of a suit with leave to file afresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order 23, Rule 1 (3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases."
7. There is neither any perversity nor any illegality in the order dated 2.7.2015. Consequently, there is no merit in this petition, the same is dismissed so also the pending application(s), if any.
