Point of Law: Court was not justified in refusing to exercise the jurisdiction under Section 151 of the Code for restoring the suit to its original number.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioners have assailed order dated 26.3.2022 passed by learned Senior Civil Judge, Court No.1, Amb, District Una, H.P. in CMA No. 120-VI-2022 in Civil Suit No. 99-I-2011.

2. Petitioners had filed Civil Suit bearing No. RBT.422-14-2011 titled Amin Chand and others vs. Balbir Singh and another inter-alia praying a decree of declaration to the effect that they had perfected the title over the suit land by way of adverse possession. The predecessor-in-interest of respondent No.1 late Sh. Gurbaksh Singh besides contesting the claim of the petitioners/plaintiffs by filing a written statement had also preferred a counter-claim on the basis of his title over the suit land. A decree for permanent prohibitory injunction was claimed against the petitioners and in alternative a decree for possession was also claimed.

3. On 30.10.2015, the petitioners withdrew the suit filed by them. Resultantly, an order came to be passed by learned Civil Judge (Jr. Division), Court No.3, Amb, District Una, in the following terms:

“30.10.2015: Present: Sh.Y.P.Sharma, Adv. for all the plaintiffs except plaintiff Durga Dass, who has expired.

Sh. N.K.Sharma, Adv.

For the Lr No.2 Balbir of deceased defendant.

Lr No.4 of deceased defendant expired.

Report of LC received. Ld. Counsel for the plaintiffs, vide his separate statement on record stated that he wants to withdraw the present suit against the defendants. In view of the statement of the Ld. Counsel for the plaintiffs, the present suit is hereby dismissed as withdrawn. However, the counter claim of the defendants survives. File after due completion be tagged with counter claim and shall be consigned to the record room after the counter claim has been finally disposed off.”

4. Petitioners filed CMA No. 120-VI-2022 in their decided Civil Suit invoking inherent jurisdiction of learned trial Court under section 151 of the Code of Civil Procedure (for short, “the Code”) and prayed as under:

“It is, therefore, respectfully prayed that this application may kindly be allowed and the civil suit RBT No.429-14-2011 titled Amin Chand etc. vs. Gurbaksh Singh” may kindly be ordered to be restored to its original stage from where it was withdrawn and decided in accordance with law alongwith counter claim filed by the defendant and such other order, as may be deemed just and proper in the peculiar facts and circumstances of the case and justice may be done.”

5. Respondents contested the application. Learned trial Court vide impugned order dated 26.3.2022, dismissed the application of the petitioners and refused to restore the suit, hence, this petition.

6. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

7. In CMA No.120-VI-2022, the petitioners had pleaded that vide judgment in the case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another (2014) 1 SCC 669 Hon’ble Supreme Court had held the plea of adverse possession to be not available to plaintiff as a sword and it was on such dictum that petitioners had withdrawn the suit on 30.10.2015. It was further averred that later the Hon’ble Supreme Court in Ravinder Kaur Grewal and others vs. Manjit Kaur and others reported in (2019) 8 SCC 729 and also in Narender Kumar Tripathi vs. Karuna Auddy and others (2020) 3 SCC 220, had clarified that the plea of adverse possession could be raised as a sword as also in defence. According to petitioners, the application CMA No. 120-VI-2022 was filed by them in view of the changed legal position.

8. Learned trial Court dismissed the application of the petitioners on the ground that the withdrawal of suit by petitioners amounted to abandonment of claim under Order 23 Rule 1 of the Code of Civil Procedure. Once the plaintiffs had exercised option to withdraw the suit, there was no provision in the Code to restore the suit to its original number. As per learned trial Court, Section 151 of the Code was not a substantive provi