Withdrawal of a civil suit is permissible under formal defects not affecting merits, allowing a plaintiff to re-file under the correct legal entity.

JUDGMENT :

Virender Singh, J.

OMP No.434 of 2023

This order of mine shall dispose of an application, under Order XXIII Rule 1 read with Sections 94 and 151 of Code of Civil Procedure (hereinafter referred to as the ‘CPC’), filed by the plaintiff, with a prayer to permit the plaintiff to withdraw the present suit, with liberty to file a fresh one, on the same cause of action.

2. Plaintiff has preferred the suit for permanent prohibitory injunction, directing defendant-Hira Nand Sharma, not to cause any interference, whatsoever, in respect of land, which is the subject matter of lease deed/agreement dated 16.01.2018, comprising of Khata No.8, Khatauni No.12, Khasra No.3, 6, 26 and 27, measuring 27-2 bigha, situated at Mauza Kahlog, Tehsil Kandaghat, District Solan (H.P.) (hereinafter referred to as the ‘suit land’), as well as, for recovery of Rs.1 crore, on account of damages, suffered by plaintiff, due to illegal and arbitrary acts of defendant.

3. When put to notice, the suit has been contested by the defendant. Defendant has also moved application (OMP No.651 of 2022), under Order VII Rule 11 read with Section 151 of CPC, for rejection of plaint.

4. Thereafter, the plaintiff has filed the present application, on the ground that, due to bona fide mistake and inadvertently, suit has wrongly been filed in the name of ‘M/s Banjara Mountain Retreat’, which, according to the plaintiff, is a business name/nomenclature for doing business. The said name is stated to be not a legal entity or a registered partnership firm.

5. The suit, according to the plaintiff, should have been filed, in the name of Sh. Vivek Kumar. However, inadvertently, the same has been filed in the name of ‘M/s Banjara Mountain Retreat’, which is a business name. It has been pleaded that on account of the said “formal defect”, the suit is likely to fail.

6. It is further case of the plaintiff that defendant had refused to accept the lease money and had even returned the lease money, deposited in the account of defendant in Bank A/c No.13560101101283 of UCO Bank, Sadhupul. The said amount has been returned by defendant in the account of plaintiff, in Bank A/c No.09810210002698 of UCO Bank, Nigam Vihar, Shimla. As such, the plaintiff has deposited a sum of Rs.10 lacs, in the Registry, in this case.

7. On the basis of above facts, a prayer has been made to allow the application and to refund the said amount, in favour of the plaintiff.

8. The application has been contested by the defendant, on the ground that, the application is not maintainable, as, the applicant cannot be allowed to institute any other suit, by granting permission to file, before this Court, on the same cause of action, as, the stand, taken by the plaintiff that the suit has wrongly been filed, has been contested, by pleading that no cause of action is available to the plaintiff to file the suit, against the defendant.

9. M/s Banjara Mountain Retreat is stated to be a registered firm and this material fact has been concealed by the plaintiff. In addition to this, a stand has also been taken that there is no privity of contract between the plaintiff and defendant.

10. Application has also been opposed, on the ground that, defendant has terminated the lease agreement with the original lessee namely Vivek Kumar, after serving proper notice, upon him and he has failed to handover the vacant and peaceful possession of the suit land, within the stipulated period of time.

11. On the basis of above, a prayer has been made to dismiss the application.

12. A perusal of record shows that the suit has been filed, in the name of ‘M/s Banjara Mountain Retreat’, thro