IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 512 of 2024 Decided on: 24.09.2025 ____________________________________________________ Devmani ……….. petitioner Versus State of H.P. and others ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioners : Mr. Sanjeev Kuthiala, Sr. Advocate, with Mr. Abhishek Kaistha, Advoate. For the respondents : Mr. Raj Kumar Negi, Additional Advocate General. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been preferred against the impugned order dated 4.7.2024 passed in Civil Suit No. 12 of 2015 titled as Devmani vs. State of H.P. vide which an application filed under Order 23 Rule 1(3) (a) & (b) read with Section 151 CPC for permission to withdraw the suit with liberty to institute a fresh suit by the present petitioner/plaintiff has been declined. 2. Heard counsel for the parties. Perused the impugned order and the pleadings appended alongwith with the present petition. 3. In the case at hand, the present petitioner/plaintiff has filed a suit for declaration, permanent prohibitory and 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 mandatory injunction. In the suit so filed, the present petitioner/plaintiff claims himself to be the owner of the suit land by virtue of an oral sale. Further, in the suit, a relief was claimed that if the petitioner/plaintiff is not proved to be an owner in possession of the suit land by way of an oral sale then in the alternative he be declared the owner by having acquired title qua the suit land by efflux of time. 4. During the pendency of the suit before the trial Court, the petitioner/plaintiff filed an application for abandoning the clam of adverse possession and also for framing of additional issue for declaring him to be an owner on account of the oral sale. The said application was allowed by the trial Court on 23.9.2019. 5. Subsequent thereto, an application under Order 6 Rule 17 CPC for amendment of the plaint was filed in order to reinsert the prayer of adverse possession. The said application was dismissed. A CMPMO No. 379 of 2023 was preferred before the High Court against the said dismissal of an application under Order 6 Rule 17 CPC for inserting a prayer by way of adverse possession, however, the same was rejected by a Coordinate Bench this High Court on 28.7.2023. 6. In the aforesaid backdrop, an application under Order 23 Rule 1 (3) (a) & (b) read with Section 151 of the CPC, permission to withdraw the suit with liberty to institute a fresh suit was filed. The said application is appended alongwith the present 3 petition as Annexure P-7. From a perusal of the application, it is evident that two pleas were being raised therein, one was a plea of adverse possession and the other was a plea with respect to certain subsequent events which had happened during the pendency of the suit. Insofar as the plea of adverse possession is concerned in the impugned order, the same has been dealt with by the trial Court. 7. The trial Court has correctly observed that the plea of adverse possession now sought to be taken had previously been withdrawn by the plaintiff himself and subsequent attempts to reincorporate the same by moving an application under Order 6 Rule 17 CPC had been dismissed both by the trial Court and the order was upheld by the Coordinate Bench of the High Court. Other than the aforesaid, the trial Court correctly observed that the plea of adverse possession affected the merits of the case, therefore, it could not be termed to be a formal defect in terms of Order 23 Rule 1(a). Besides the aforesaid, plea of ownership being claimed by the petitioner/plaintiff in his suit on the basis of an oral sale and the plea of adverse possession now sought to be revived, were correctly held to be mutually destructive and hence not available to the petitioner/plaintiff. 8. However, what is conspicuous by absence is the plea specifically raised in the para 5 of the application wherein the petitioner/plaintiff had highlighted certain subsequent 4 developments which had happened during the pendency of the suit. 9. In the aforesaid facts and attending circumstances, learned counsel appearing on behalf of the petitioner/plaintiff submits that rather than pressing the present petition and challenging the impugned order dated 4.7.2024 in the case at hand, he would in accordance with law seek amendment of the pending suit on account of subsequent developments which has happened during the pendency of the lis before the trial Court specifically detailed in para 5 of the application filed under Order 23 rule 1 (3) (a) & (b) read with Section 151 CPC. If such a recourse is adopted to by the petitioner/plaintiff then the trial Court, it goes without saying, shall deal with the same in accordance with law. 10. In view of the aforesaid, the present petition stands disposed of as not pressed, so also, the pending miscellaneous applications, if any. (Bipin Chander Negi) Judge September 24, 2025 tarun