TMI Blog1990 (10) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. On pleadings of the parties, the trial court framed the following issues : 1. Whether the plaintiffs have got locus standi to file the present suit ? 2. If Issue No. 1 is proved, whether a valid notice under section 125 of the Delhi Municipal Corporation Act was served upon the plaintiffs, if not so, its effect ? 3. Whether the suit is barred by sections 477 and 478 of the Delhi Municipal Corporation Act ? 4. Whether the suit is barred by sections 169 and 179 of the Delhi Municipal Corporation Act ? 5. Whether the demand made by the defendant is legal, if so, its effect ? 6. Relief. The said suit was finally dismissed by the trial court, vide judgment and decree dated March 30, 1979. The trial court passed a detailed order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same cause of action, it has been urged by counsel for the petitioner that, when the trial court had dismissed the plaintiffs' suit on merits, it was not open to the learned Additional District Judge to grant permission for withdrawal of the suit with liberty to file a fresh suit. It is urged that the plaintiff's suit has not been dismissed by the trial court on account of some formal defect. The trial court has gone into the merits of each and every issue that had been framed in the suit and, therefore, the suit could not be allowed to be withdrawn at the appellate stage. It is further urged by counsel for the petitioner that granting such permission at the appellate stage would mean that, when the plaintiff finds himself being non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted to re-agitate the same points all over again which could never be the intention of law. Grant of such a permission at the appellate stage under the circumstances is totally illegal and without jurisdiction. Of course, under Order 23, rule 1, words "at any time" have been used. But this can only be interpreted to mean "at any time during the trial of the suit." I hold that the impugned order of the lower appellate court dated February 6, 1980, allowing the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action, thus setting aside the judgment and decree of the trial court, is totally illegal and without jurisdiction. The lower appellate court has failed to appreciate that the effect of such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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