JUDGMENT :

Dharam Chand Chaudhary, J.

Challenge herein is to the judgment and decree dated 19.1.2013 passed by learned District Judge, Mandi, in Civil Appeal No.47 of 2012, whereby the appeal preferred by the appellant, hereinafter referred to as 'the plaintiff", has been dismissed and the judgment and decree dated 21.4.2012 passed by learned Civil Judge (Junior Division), Court No.3, Mandi, in Civil Suit No.32/2007, has been upheld.

2. The complaint is that the agreement duly executed by the parties has not been acted upon by the respondent-defendant, as he has refused to honour the same. The plaintiff, instead of filing a suit for specific performance of the contract, filed a suit for declaration and mandatory injunction, seeking direction to the defendant to put him in possession of one of the two shops he constructed from his own funds over the land belonging to the defendant, pursuant to agreement Ext. PW1/A. When the plaintiff came to know about such defect in the plaint, he filed an application under Order 23, Rule 1 (3) read with Section 151 of the Code of Civil Procedure, for permission to withdraw the suit with liberty to file fresh suit on the same cause of action. The appl