Smt. Irshad Fatma and anr. Vs. Chaman Lal and ors. - Court Judgment

Excerpt:

- .....counsel submits that the present revision petition may be treated as petition under article 227 of the constitution of india.3. keeping in view the facts and circumstances of the case and request made by the learned counsel for the petitioners, the present petition is treated to be a petition under article 227 of the constitution of india.4. the plaintiffs are petitioners before this court. they are aggrieved against the order dated march 3, 2003 passed by the learned trial court, whereby their application filed under order 23 rule 3 of the code of the civil procedure has been dismissed. through the aforesaid application, the plaintiffs wanted to withdraw the aforesaid suit with a liberty to file a fresh suit on the same cause of action. it is not in dispute that the suit is still at the initial stages. in fact some of the defendants have not even been served so far.5. in these circumstances, ho prejudice or injustice would be caused to the defendants, if the prayer of the plaintiffs is granted.6. in this view of the matter, the present revision petition is allowed and the order dated march 3, 2003, passed by the learned civil judge (junior division) panipat is set aside. the.....

Judgment:

ORDER

Viney Mittal, J.

1. In view of the law laid down in the case of Shiv Shakti Coop. Housing Society Nagpur v. Swaraj Developers and Ors., J.T. 2003(4) S.C. 255, the revision petition filed by the petitioners under Section 115 CPC is not maintainable.

2. Faced with this difficulty, the learned counsel submits that the present revision petition may be treated as petition under Article 227 of the Constitution of India.

3. Keeping in view the facts and circumstances of the case and request made by the learned counsel for the petitioners, the present petition is treated to be a petition under Article 227 of the Constitution of India.

4. The plaintiffs are petitioners before this Court. They are aggrieved against the order dated March 3, 2003 passed by the learned trial Court, whereby their application filed under Order 23 Rule 3 of the Code of the Civil Procedure has been dismissed. Through the aforesaid application, the plaintiffs wanted to withdraw the aforesaid suit with a liberty to file a fresh suit on the same cause of action. It is not in dispute that the suit is still at the initial stages. In fact some of the defendants have not even been served so far.

5. In these circumstances, ho prejudice or injustice would be caused to the defendants, if the prayer of the plaintiffs is granted.

6. In this view of the matter, the present revision petition is allowed and the order dated March 3, 2003, passed by the learned Civil Judge (Junior Division) Panipat is set aside. The application of the plaintiffs to withdraw the suit with the liberty to file a fresh suit on the same cause of action is allowed.

7. Before parting with this order, it is made clear that this order shall not construe to mean that any fresh right has accrued in favour of the plaintiffs or any fresh cause of action has been given to them. The plaintiffs would be permitted to file a suit only in accordance with law. On filing of such suit all the objections available to the defendants shall be open to them.

8. It is also made clear that if the plaintiffs file an application before the learned Trial Court for return of the original documents, then the same shall be returned, in accordance with law.

The present revision petition is allowed, subject to the payment of Rs. 3,000/- as costs.