Vineet Kothari, J.@mdashThis writ petition is directed against the order dated 03.08.2009 whereby the learned trial court allowed the defendant to withdraw his counter claim in the suit filed by the present petitioner Shamsher Singh which counter claim was filed by the defendants Devender Singh to seek the custody of the child Parjat @ Sahibjot Singh.
2. The parties are co-brothers and the son Parjat was natural born son of defendant Devender Singh and his wife Smt. Tarvinder Kaur, whereas the plaintiff Shamsher Singh and his wife Harjeet Kaur filed the present suit claiming that the said son Parjat alias Sahibjot was adopted by them and was in their custody and, therefore, injunction was sought against the defendants to claim the custody of the said son Parjat alias Sahibjot.
3. The parties seem to be in dispute over this issue of custody for quite some time and whereas this suit No. 68 of 2005 was filed by the present petitioners plaintiffs in the Court at Sri Ganganagar, Rajasthan, the defendant Devender Singh appears to have filed another suit at Punjab in Mohali.
4. It also appears from the impugned order that the present petitioners have approached the Hon''ble Supreme Court and have obtained a stay against the proceedings in the trial at Punjab Court.
5. The defendant Devendra Singh filed the application Annex.6 (page 63 of the paper book) on 05.03.2009 seeking to withdraw his counter claim in the suit No. 68 of 2005, filed by the present petitioners Shamsher Singh and another in the Court of learned ADJ No. 2, Sri Ganganagar u/s 23 Rule 1 read with Section 151 C.P.C. which came to be allowed by the impugned order Ex.8 dated 03.08.2009.
6. The learned Counsel for the petitioner-plaintiff, Mr. M.C. Bhoot submitted that it is not simplicitor withdrawal of the counter claim by the defendant but abandonment of his claim under the said application Ex.6 and, therefore, without the permission to institute any other suit of this nature, the learned trial court could not have returned the said counter claim on the ground of the said Court at Sri Ganganagar having no jurisdiction in the matter and according to him since the child is in custody of the present plaintiff petitioners at Sri Ganganagar Court, therefore, the Sri Ganganagar Court had the jurisdiction in the matter.
7. Having heard learned Counsel, this Court is of the opinion that the application Exhibit 6 filed by the defendant is an application for withdrawal of the counter claim and not abandonment. The use of word "Parityag" in para 2 (abandonment) though is there but the last para of the said application clearly stipulates that the applicant/defendant Devendra Singh and Smt. Tarvinder Kaur may be permitted to withdraw their counter claim filed with the written statement filed in the suit and the same may be removed from the record of the Court. A perusal of the Order 23 which are reproduced hereunder clearly empowers the Court under Sub-rule (3) to grant the plaintiff permission to withdraw such suit or such part of the claim with liberty to institute a fresh suit in respect of the other matter of such suit or such part of the claim, where the Court is satisfied, (a) that a suit must fail by reason of some formal defect, or (b) 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.
Order 23 is reproduced hereunder:
Order XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,-(a) that a suit must fail by reason of some formal defect, or (b) 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, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff-(a) abandons any suit or part of claim under Sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of other plaintiffs.
8. The observation of the learned trial court in the impugned order in the end of para 4 that since the defendants in respect of his counter claim enjoyed the position of the plaintiff and he has submitted that for the custody of the minor in question the said Court at Sri Ganganagar does not have the territorial jurisdiction, therefore, he may be permitted to withdraw his counter claim and being satisfied with the same, if the learned trial court has allowed such withdrawal in terms of Rule (3) of Order 23, in the opinion of this Court, no valid exception can be taken to the same by the plaintiff, the present petitioners.
9. It also appears that the present plaintiff had filed an application u/s 151 of the C.P.C. and for staying the proceedings in the suit itself in Sri Ganganagar Court also, which was also rejected by the learned trial court on the same date i.e. 03.08.2009. However, the learned Counsel for the petitioner submits that this order Exhibit 10 is not under challenge and it is placed on record just by way of factual information.
10. Be that as it may since this Court is of the opinion that the learned trial court could permit such withdrawal of counter claim in terms of Order 23 Rule 3, the impugned order Exhibit 8 dated 03.08.2009 cannot be successfully challenged by the present petitioners plaintiffs.
11. The contention of the learned Counsel for the petitioner that the Court has allowed such withdrawal on the ground that the Court does not have territorial jurisdiction is misconceived. The observations in para 4 by the learned trial court is not the finding of the Court but the ground on which the defendant sought to withdraw his counter claim and, therefore, this is not the ground for permitting the withdrawal.
12. The writ petition is found to be devoid of merit. The same is accordingly dismissed. Copy of this judgment be sent to opposite parties and the learned trial court forthwith. No costs.
