The main legal point established in the judgment is that a suit with formal defects may lead to the grant of permission to file a fresh suit on the same cause of action, and the court may not interfere with such orders.

Vinod K.Sharma, J.

1. The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order passed by the learned trial Court vide which application moved by the plaintiffs-respondents under Order 23 Rule 1 and 3 of the Code of Civil Procedure ( in short the CPC) stands allowed. The impugned order reads as under:-

"Arguments heard on application under Order 23 Rules 1 and 3 filed by the plaintiffs. Learned counsel for plaintiffs argued that this suit was filed on 23.7.2003 and notice was issued to the defendants. Defendants no.10 and 11 were served and defendants No. 1 and 2 did not appear despite service and were proceeded against ex parte and the matter was adjourned for service of un-served defendants for 22.11.2003. In the meantime, defendants No.10 and 11 filed written statement. In his reply defendant No.11 did not take any objection regarding the fact that the defendants No.3 to 6 had already been died intentionally only to linger on the proceedings. Plaintiffs have got no knowledge at the time of filing of the suit that defendants No.3 to 6 have already been died. But when the plaintiffs came to know that defendant No.3 Gurdev Kaur has died, they filed an application on 27.8.2003 under Order 22 rule 4 read with Section 151 CPC but contesting defendants also did not give its reply for a long period and they filed reply on 26.5.2004. Plaintiffs came to know that during pendency of this suit, defendants No.3 to 6 died, so they filed an application under order 22 rules 3,4 and read with section 151 CPC and under order 6 rule 17 CPC on 13.9.2004. Reply of which was filed by the defendants on 13.12.2004. Plaintiffs also filed an application under order 1 rule 10 CPC for impleading the LRs of defendant No.3 Gurdev Kaur and reply of the same was filed on 7.6.2006.

Learned counsel further argued that vide order dated 9.1.2007, applications dated 27.8.2003 and 13.9.2004 were dismissed. The plaintiffs filed a petition before Honble High Court and Honble High Court dismissed the revision petition with a liberty to the plaintiffs to have recourse to the provisions of law for impleading any party, if so desires. Thereafter, on 22.2.2008, plaintiffs filed an application u/o 1 rule 10 CPC and under order 6 rule 17 read with section 151 CPC which was dismissed vide order dated 29.7.2009 with a liberty to file a fresh suit by impleading all necessary legal heirs of deceased defendants. In these circumstances, the plaintiffs went to file fresh suit on the same cause of action and regarding the same subject matter, for which permission is required to be granted. On the other hand, learned counsel for defendant No.10. did not advance any argument. However, learned counsel for defendant No.11 argued that application is not maintainable as there is no formal defect in this case. The plaintiffs came to know regarding death of some defendants in the year 2003 and he filed the suit against dead persons. Thus, no permission to file fresh suit can be granted. I have heard the rival contentions of learned counsel for both the parties and have gone through the file carefully. Filing of various applications and decision of the same, order of Honble High court as discussed above, are admitted facts. The plaintiffs have filed the present suit for declaration to the effect that they are owners in possession of land measuring 38 kanals 1 marla vide sale deed dated 20.8.1965. They have filed this suit against 11 defendants. While contesting an application under order 1 rule 10 and under order 6 rule 17 read with section 151 CPC vide order dated 29.7.2009, this court dismissed the application with liberty to the plaintiffs to file fresh suit by impleading all necessary parties after withdrawal of the present suit. The contesting defendants or any body else did not file revision petition against the said order. Thus, now the contesting defendants are estopped from saying that per