C.Rev.47 of 2015 Page 1 of 8

HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

C. Rev. No. 47/2015

Date of order: 10.11.2017

Ali Mohammad Rather

Versus

Muhammad Ismail Rather and others

Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing Counsel:

For Petitioner(s):

Mr. W. M. Shah, Advocate

For Respondent(s):

Mr. M. Y. Bhat, Advocate

i)

Whether approved for reporting in Press/Media:

Yes/No

ii)

Whether approved for reporting in Digest/Journal:

Yes/No

___________________________________________________________________________

1.

Petitioner has filed present revision petition against the order of

court below thereby challenging the order dated 3.12.2015, by virtue of

which his application filed under order 23 Rule 1 (3) CPC for

withdrawal of suit with permission to file fresh suit before court, has

been dismissed.

2.

In memo of revision petition it has been stated that the reasons

mentioned for withdrawal of case/suit is on the basis of misjoinder of

parties, contradictory pleading and a vital formal defect due to which

petitioner/plaintiff may fail in suit. That it is pertinent to reproduce the

para (8) of the plaint which has compelled the plaintiff (Petitioner) for

withdrawal of the suit. In Para (8), of application filed before court below

for withdrawal of suit it has been stated “That since the land in question

measuring 1 kanal 1 marla bearing khasra No. 676 situated at K.P.

Bagh is recorded in the possession of the plaintiff in the revenue

records, the defendants are forcibly going to construct a tower on the

same, the defendants are thereby going to dispossess the plaintiff

from the said land. The defendants have already constructed plinth

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forcibly on a portion of the said land a few days before institution of

the suit and this way they have physically dispossessed the plaintiff

from the same. The defendants are going to construct the said tower

over a portion of 11 marlas of the land”.

3.

That above para (8) in the plaint was inserted by way of

amendment, as the suit of the petitioner was simple injunction suit, in

other words due to inadvertence of the advocate the plaint has become

contradictory one with defects. That plain reading of para (8) of the

plaint, the existence and pendency of injunction suit now amended has

totally abrushed it as if no suit was pending, the amendment should have

been for demolition of the tower by issuance of mandatory injunction.

But ill drafting on the basis of ill advice of the advocate, the suit of the

petitioner was made defective one, as such the plaintiff has to fail in the

suit in this situation.

4.

That one of the formal defect is misjoinder of parties, as

respondent no. 1 is a co-sharer and he was a necessary or proper party in

the suit. No doubt petitioner has a right to strike his name by a motion

under order 1 Rule 10 CPC, but at the same time the allegations in the

plant will remain there and those will adversely affect the plaintiff’s

cause as such the withdrawal was sought on this account also.

5.

That the trial court has totally ignored these aspects of the case and

has misinterpreted law in a way to cause inconvenience to the petitioner.

6.

That the petitioner’s application was clear and formal defect with

sufficient grounds was clear. But the trial court has rejected the

application that misjoinder has not been shown by the petitioner, though

it was argued in detail. Secondly the ld trial did not appreciate the para

(8) of the plaint a vital defect, on the basis of ill advice of the advocate,

C.Rev.47 of 2015