Withdrawal of Suit--At appellate stage, with liberty to file afresh suit on same cause of action--Not justified, when objection to frame of the suit has not been taken.

Mr. L.N. Mittal, J.: (Oral) - Defendants No. 3 and 4 have filed this revision petition under Article 227 of the Constitution of India for setting aside order dated 29.07.2011 passed by learned Additional District Judge, Jalandhar.

2. Suit filed by respondents No. 1 and 2/plaintiffs against respondents No. 3 and 4 (defendants No. 1 and 2) and petitioners (defendants No. 3 and 4) was dismissed by trial Court vide judgement and decree dated 25.08.2009. Plaintiffs filed first appeal against judgement and decree of the trial Court. During pendency of the said appeal, plaintiffs moved application (Annexure P6) for amendment of plaint. Thereafter, plaintiffs moved application (Annexure P8) for withdrawal of the suit with permission to file fresh suit on the same cause of action. Both these applications were resisted by defendants No. 3 and 4 by filing reply (Annexure P7) and reply (Annexure P9).

3. Learned lower Appellate Court vide impugned order dated 29.07.2011 allowed application (Annexure P8) moved by the plaintiffs for withdrawal of the suit with permission to file fresh suit on the same cause of action subject to payment of Rs. 5,000/- as costs and consequently dismissed application (Annexure P6) for amendment of plaint. Feeling aggrieved, defendants No. 3 and 4 have filed this revision petition.

4. I have heard learned Counsel for the parties and perused the case file.

5. Counsel for the petitioners contended that the petitioners never objected to the form of the suit and, therefore, there was no formal defect in the suit to entitle the plaintiffs to withdraw the instant suit with liberty to file a fresh suit on the same cause of action and, therefore, such liberty could not be granted in first appeal. Reliance in support of this contention has been placed on judgement of this Court in Gurnek Singh and another Vs. Gurbachan Singh and others, AIR, 1986 (P&H), 228 and judgement of Hon’ble Supreme Court in K.S. Bhoopathy and others Vs. Kokila and others, AIR, 2000 (SC), 2132. It was also pointed out that even on the last date of hearing, it was stated by counsel for the petitioners that they still do not object to the form or maintainability of the suit.

6. On the other hand, counsel for respondents No. 1 and 2/plaintiffs contended that since form of the suit is not objected to, amendment of plaint sought by the plaintiffs should be allowed as instead of suit for declaration and mandatory injunction, plaintiffs want to seek relief of possession by making some other consequential amendments also. It was pointed out that amended provision of Order 6 Rule 17 of the Code of Civil Procedure which prohibits amendment of pleading after commencement of trial is not applicable to the instant suit which was instituted prior to coming into force of the aforesaid amended provision.

7. Counsel for the petitioners submitted that since petitioners are not objecting to the form of the suit, formal amendment mentioned in Clauses a and b of paragraph 3 of amendment application (Annexure P6) may be permissible, but other amendments sought in the plaint cannot be allowed because the same would completely change the nature of the case. Counsel for petitioners also submitted that lower Appellate Court has not decided the amendment application on merits and, therefore, after setting aside the impugned order, lower Appellate Court may be required to decide amendment application (Annexure P6) on merits in accordance with law.

8. I have carefully considered the rival contentions.

9. In so far as impugned order permitting the plaintiffs to withdraw the suit with liberty to file fresh suit on the same cause of action is concerned, the same is not sustainable because the contesting defendants/petitioners did not object to the form and maintainability of the suit and even now petitioners have no objection to the same and also have no objection to amendment of the plaint only to the limited extent of converting the relief of mandatory injunction in