270 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR-6077-2022 Date of decision : 08.07.2025 Dharampal ....Petitioner Versus Krishan and others ....Respondents CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN Present : Mr. Sumit Sangwan, Advocate for the petitioner.

Mr. Sandeep Sharma, Advocate for respondent No.1 PANKAJ JAIN, J. (ORAL)

Instant revision petition is directed against order dated

31.10.2022 passed by Ld. Civil Judge (Senior Division), Charkhi Dadri whereby application filed by plaintiff seeking withdrawal of the suit with liberty to file a fresh on the same cause of action, has been allowed.

2. Counsel for the petitioner submits that the Trial Court wrongly allowed the application after the petitioner has been made to face prolonged ordeal of trial for 7 years without there being any formal defect. He submits that only formal defect that was spelled out in the application was that the State of Haryana and the Revenue Department which were necessary parties were not impleaded and the appropriate relief could not be sought. He submits that he is ready to give concession that the necessary parties in form of State of Haryana and Revenue Department be allowed to be impleaded and the suit be ordered to proceed from the same stage but the application for filing fresh suit on the same cause of action, be not allowed.

3. Per contra, counsel for the respondent/plaintiff submits that there was a discrepancy between Parat Sarkar and Parat Patwar. The suit was filed on the basis of parties detailed out in Parat Patwar due to which necessary parties could not be impleaded. It being formal defect which was fatal to the suit, the application was moved which has been rightly allowed by the Trial Court.

4. I have heard counsel for the parties and have carefully gone through records of the case.

5. Order XXIII CPC deals with withdrawal and adjustment of suits. Order XXIII Rule 1 deals with withdrawal of suit or abandonment of part of claim. The same reads as under:

“[1. Withdrawal of suit or abandonment of part of claim.— (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied,—

(a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff—

(a) abandons any suit or part of claim under sub-

rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.]

6. Explaining the import of the provision, Supreme Court in the case of ‘K.S. Bhoopathy vs. Kokila, (2000) 5 SCC 458’ observed as under:

“13. T