When a suit is dismissed on merits, the right accrued in favor of the defendant cannot be nullified by allowing the plaintiff to withdraw the suit and file a fresh one on the same cause of action.

Surya Kant, J.

1. This civil revision is directed against the order dated 28.7.1984 passed by Additional District Judge, Narnaul, whereby an application moved by the plaintiff (respondent herein) under Order 23 Rules 1 and 2 of the Code of Civil Procedure (in short, the Code) as well as other application under Order 6 Rule 17 of the Code for amendment of the plaint were decided and while accepting the prayer mentioned in the first application, he has been permitted to withdraw the suit with permission to file fresh one on the same cause of action.

2. Aggrieved at the afore-mentioned order that the defendants (petitioners herein) have approached this Court.

3. Briefly stated, the facts are that in the year 1975, a suit for possession by way of partition was filed by the respondent-Ram Sarup. The petitioners contested the same on the plea that the parties were in separate possession of their respective s hares. T he learned trial Court, vide its judgment and decree dated 18.4.1977, dismissed the suit. It may be mentioned here that the following issues were framed by the learned trial Court:-

(1) Whether the site in dispute depicted as ABCDE-FGHI in the plan annexed with the Plaint is jointly owned and occupied by the plaintiff and the defendants to the extent of the half share each, as alleged,? OPP

(2) Whether the site depicted as FGHI is in the joint occupation of all the co-sharers as alleged? OPP

(3) Whether the suit is not maintainable in the present form? OPD

(4) Whether the suit is bad for non-joinder of necessary parties? OPD

(5) Whether the suit is barred by the principle of res judicata? OPD

(6) Whether the suit is bad on account of partial partition? OPD

(7) Whether the suit is false and frivolous? OPD

(8) Relief.

4. After discussion on Issue No. 1, the trial Court in para 9 of its judgments dated 18.4.1977 returned the following finding:-

"In view of my above, discussion, I find that the plaintiff has failed to prove that the disputed property is jointly owned by the parties or that the plaintiff and defendant No. 4 have half share therein whereas defendants 1 to 2 have the other half share."

5. In relation to Issue No. 4, namely, whether the suit is bad for non-joinder of necessary parties, the trial Court held as follows: -

"The plaintiff in his statement as PW-5 stated that the disputed property originally was owned by Deda ancestor of the parties. According to the plaintiff, Sheoji and Ram Lal were sons of the said Deda and the plaintiff and defendant No. 4 are descendants of Ram Lal and the defendant No. 1 to 3 are descendants of Sheoji and so the plaintiff and defendant No. 4 are owners of half share of the disputed property whereas defendants 1 to 3 are owners of the other half share. The plaintiff in his cross-examination admitted that Hem Raj, Arjun, Gurdial sons of Jhabu son of Kishan Sahai son of Sheoji son of Deda are alive. So naturally they also become necessary parties to the suit as they are descendants of Deda from whom the plaintiff claim title in the disputed property. But they have not been impleaded as parties and so the suit is bad for non-joinder of necessary parties. Thus, the issue stands decided in favour of the contesting defendants."

6. The respondent appealed against the aforesaid judgment before the first Appellate Court and during the pendency thereof that the two applications which led to the passing of the impugned order by the first Appellate Court, were moved by him. It may be mentioned here that at the time of admission of this civil revision this Court vide order dated February 27, 1985 had stayed the operation of the impugned order.

7. I have heard Shri Sanjay Mittal, learned counsel for the petitioners as well as Shri Ajay Jain, learned counsel for the respondent and have also perused the record.

8. Shri Sanjay Mittal contends, inter alia, that the first Appellate Court has allowed the application under Order 23, Rule 1 and 2 of the Code on an erroneous premise as if the