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2021 DIGILAW 237 (TS)

Guntuka Sudharnani v. Gajji Suraiah

2021-07-16

B.VIJAYSEN REDDY

body2021
ORDER : This revision is filed challenging the order dated 27.10.2016 in I.A.No.262 of 2016 in O.S.No.1697 of 2012 passed by the Principal Junior Civil Judge, Warangal whereunder an application filed seeking permission to withdraw the suit with liberty to institute a fresh suit was dismissed. 2. The petitioner is the plaintiff in O.S.No.1697 of 2012, which is filed seeking relief of permanent injunction in respect of agricultural land described in the plaint schedule. An application in I.A.No.262 of 2016 was filed by the petitioner/plaintiff under Order XXIII Rule 1(3)(b) of the Code of Civil Procedure, 1908 seeking permission of the Court to withdraw the suit with liberty to institute a fresh suit in respect of the subject matter of the suit. 3. In the affidavit filed in support of I.A.No.262 of 2016, the petitioner stated that she is the absolute owner and possessor of the plaint schedule property. Her husband passed away and she is one of the legal heirs along with her children. On a legal advice, she filed injunction simplicitor suit restraining the respondents from interfering with the plaint schedule property. The respondent/defendant No.1 filed a written statement in the suit alleging that they are in possession of Ac.8.09 guntas and the remaining Ac.0.13 guntas of the plaint schedule property is in possession of one Lakshmi Narayana and M. Rupa. It is alleged by the respondents that the husband of the petitioner/plaintiff has received sale consideration and executed simple sale deeds in favour of the defendants. In view of the defence of the respondents, the petitioner intended to file a comprehensive suit against the respondents/defendants as the simple suit for perpetual injunction is not maintainable and the same constitutes sufficient ground to permit the petitioner/plaintiff to institute fresh suit. 4. The respondents/defendants have not filed counter to the aforesaid application. 5. Under the impugned order, the Court below dismissed the application by giving a reason that the petitioner/plaintiff was contesting the suit since 2012 onwards but the present application is filed in 2016 (wrongly typed as 2013), after completion of her evidence including cross-examination and moreover, at the stage of judgment. The Court below observed that the petitioner/plaintiff is not diligent in prosecuting her case and only with a view to defeat the interest of the contesting respondents, the present application is filed. The Court below observed that the petitioner/plaintiff is not diligent in prosecuting her case and only with a view to defeat the interest of the contesting respondents, the present application is filed. The application cannot be entertained at a belated stage by permitting the petitioner/plaintiff to create a fresh round of litigation. As the evidence of the defendants is not yet completed, the relief cannot be considered and the petitioner has got every right to contest the suit. 6. Mr. R.A. Achuthanand, learned counsel for the petitioner, submitted that the petitioner intends to withdraw the suit and file a comprehensive suit for declaration. The Court below ought to have granted permission to withdraw the suit, if necessary by imposing costs. The matter is posted for cross-examination of defendants and not for judgment, as observed by the Court below. The withdrawal application can be filed at any stage and even at the stage of appeal. The ground of filing comprehensive suit is a sufficient ground within the meaning of Order XXIII Rule 1 (3) (b) CPC. The provision gives unqualified right to the plaintiff to withdraw the suit in the circumstances mentioned therein. The Court below ought to have allowed the application, as the petitioner/plaintiff is seeking larger relief against the respondents/defendants. The application is no filed at belated stage, as pointed out by the Court below. The observation of the Court below that it will lead to fresh round of litigation is not a sound consideration applying the principles under Order XXIII Rule 1 CPC. Withdrawal of suit is based on public policy as the party can take leave to withdraw the suit or without taking leave of the Court can abandon the suit and in that case, he/she is precluded from bringing a fresh suit on the same cause of action. These parameters have not been considered by the Court below. 7. In support of his contentions, the learned counsel for the petitioner relied upon the following decisions : B. RIZWAN BAIG v. MUNICIPAL CORPORATION, HYDERABAD, 1989 LAW SUIT (AP) 285; RESHAVANI @ RESHAVENA AILAIAH v. MACHERLA CHINNA NARASAIAH @ NARSINGA RAO, 2018 LAWSUIT (HYD) 204 ABDUL GHAFOOR v. ABDUM RAHMA, AIR 1951 ALLAHABAD 845; BANIRAM v. GAIND, AIR 1982 SC 789 ; KHARDA CO. LTD. v. DURGA CHARAN CHANDRAN, 1910 (11) CLJ 45. 8. Per contra, Mr. LTD. v. DURGA CHARAN CHANDRAN, 1910 (11) CLJ 45. 8. Per contra, Mr. M. Ajay Kumar, learned counsel for the respondents/defendants, contended that serious prejudice will be caused to the respondents if permission is granted to withdraw the suit. The suit is filed in the year 2012 and application for withdrawal is filed in the year 2016. It is nothing but an attempt to protract the litigation, having realized that the petitioner/plaintiff has a weak case and chances of success are very bleak. The respondents have filed a detailed written statement opposing the suit claim and at the stage of evidence, if the petitioner/plaintiff is permitted to withdraw the suit, it would lead to multiplicity of proceedings. The petitioner/plaintiff has not shown sufficient cause and the conditions contained under Order XXIII Rule 1(3)(b) CPC are not satisfied. 9. In RIZWAN BAIG’s case (supra), the plaintiff therein initially instituted a suit for perpetual injunction against defendants – Municipal Corporation of Hyderabad. Thereafter, an application was filed under Order 23 Rule 1 (3) CPC seeking permission of the Court to withdraw the suit with liberty to file fresh suit (which was already filed in O.S.No.2404 of 2008 on the file of the II Assistant Judge, City Civil Court, Hyderabad). It was the case of the plaintiff that notice under Section 685 of the HMC Act is necessary prior to institution of the suit. The High Court held that earlier injunction suit will fail for reason of non-issuance of statutory notice, which was fatal and permission was granted. 10. In RESHAVANI @ RESHAVENA AILAIAH’s case (supra), on the facts appearing in the said case, the learned Judge by considering the fact that earlier suit is filed for perpetual injunction, took a view that the affidavit filed by the petitioner discloses that the formal defect in the suit is unworkable prayer and secondly, sufficient grounds are shown namely that the petitioner purchased the plaint schedule property from the respondents therein and there is necessity for seeking declaration of title and recovery of possession (see para 13). The Court held in para 12 as under : “… What constitutes sufficient grounds has been left to judicial discretion of the Court and whether the grounds stated by the plaintiff merit acceptance as sufficient grounds to permit plaintiff to file a fresh suit after removing the defect in the pending suit. The Court held in para 12 as under : “… What constitutes sufficient grounds has been left to judicial discretion of the Court and whether the grounds stated by the plaintiff merit acceptance as sufficient grounds to permit plaintiff to file a fresh suit after removing the defect in the pending suit. Defect in the plaint constitutes sufficient ground for allowing the plaintiff to withdraw the suit with liberty to file fresh suit. The expression sufficient grounds is given wider meaning, but not restricted meaning, so that the right of a party is not prejudicially affected and legal remedy denied without adjudication.” 11. In ABDUL GHAFOOR’s case (supra), the plaintiff instituted a suit for declaration to the effect that oral gift made by the plaintiff in favour of the defendant was invalid. The suit was dismissed. The matter was carried in appeal by the plaintiff. Before the appellate Court the plaintiff filed an application under Order 23 Rule 1 CPC for withdrawal of suit and put forth the plea: “that there was a formal defect in the plaint inasmuch as the plaintiff inadvertently failed to plead that Section 24 of the Regulation of Agricultural Credits Act operated to render the gift invalid and that he omitted to pray alternatively for possession”. After application for withdrawal of suit was allowed, the revision filed by the defendant under Section 115 CPC was referred to Full bench for answering: “(1) Whether the words ‘other sufficient grounds’ in R.1 (2) (b) of O.23. Civil P.C. cover ground other than those mentioned in R.1 (2) (1)? (2) If the answer to the first question is in the affirmative, in what circumstances and on what principles interference under S.115, Civil P.C., can be justified?” The Full Bench of the Allahabad High Court held that the words “sufficient grounds” under Rule (1)(2)(b) of Order 23 of the Code of Civil Procedure covers ground analogous to those mentioned under Rule 1 Sub-Rule (2) (a). Insofar as second question is concerned, it was held that if the Court (lower Court) exceeds limits within which its discretion is circumscribed and otherwise, there is a defect of jurisdiction, the decision even though judicially arrived at cannot be allowed to stand. Insofar as second question is concerned, it was held that if the Court (lower Court) exceeds limits within which its discretion is circumscribed and otherwise, there is a defect of jurisdiction, the decision even though judicially arrived at cannot be allowed to stand. The principle of interference in revisions and the circumstances under which application under Section 115 CPC against orders permitting withdrawal of suits should be entertained would depend on the facts of each case and it is obviously undesriable even it if it be not impossible to define their scope or to attempt to enumerate them. 12. In BANIRAM’s case (supra), the Supreme Court permitted the appellant to withdraw the suit with a liberty to file fresh suit on the same cause of action on the ground that non-pleading of a fact may prove a technical impediment and may result in the dismissal of the appeal which may impede a fresh adjudication if a point is to be made though belated. 13. In KHARDA CO. LTD.’s case (supra), the plaintiff filed a suit for recovery of money, evidence was adduced by both the sides and argument on the side of the defendants was completed. At that stage, the plaintiff applied for leave to withdraw the suit with a liberty to bring a fresh suit on the same cause of action. The plaintiff was permitted to withdraw the suit. Taking into consideration the fact that the whole of the evidence has been adduced when the leave to withdraw the suit was sought and the contention of the petitioners/defendants that if order of withdrawal is maintained, the plaintiff will have an opportunity to adduce not merely the evidence which he alleges he has not been able to produce at this trial, but possibly also a mass of perjured evidence (see para 2). The Division Bench of the Calcutta High Court allowed the revision by setting aside the order of the Court below granting permission to withdraw the suit. 14. Coming to the case on hand, the petitioner filed an application for withdrawal of suit after completion of evidence and at the stage of hearing. The petitioner has not pleaded that there is any formal defect in the suit or pleadings. 14. Coming to the case on hand, the petitioner filed an application for withdrawal of suit after completion of evidence and at the stage of hearing. The petitioner has not pleaded that there is any formal defect in the suit or pleadings. It is the case of the petitioner that on the advice of her lawyer, she instituted suit for injunction simplicitor; in view of the defence of the respondents, on legal advice, the petitioner intended to file a comprehensive suit. As held in the decisions referred to above, what constitutes “sufficient grounds” depends on the facts and circumstances of each case. 15. The application of the petitioner, on the face of it, lacks bonafides. If really the petitioner was advised to file a comprehensive suit, in the light of the defence taken by the respondents/defendants, the application for withdrawal should have been filed immediately after written statement was filed. But the petitioner chose to wait until evidence is concluded. It is the contention of the petitioner that the suit is coming for her cross-examination. Be that as it may, the petitioner has to make out a case of “sufficient ground” so as to withdraw the suit. The petitioner merely stated that she intends to file a suit with comprehensive relief. The affidavit does not say what sort of comprehensive relief the petitioner intends to seek in the new suit. The suit filed by the petitioner is an injunction based on title to the property. It is always not necessary that there should be a relief of declaration in a title suit. The petitioner cannot be permitted to take away the advantage accrued to the respondents, who are defending the suit. By contesting the suit, the respondents have put forth their rival claim over the title and defended the petitioner’s claim. After cause of action has accrued for filing of the suit and parties with their eyes wide open litigate before the Court, it would be unjust to permit the petitioner to withdraw the suit at whatever stage the petitioner chooses to and at her whims and fancies. The petitioner has not only to explain the delay in filing the application but at the same time has also to spell out clearly as to what nature of the so called “comprehensive suit” she intends to file. The petitioner has not only to explain the delay in filing the application but at the same time has also to spell out clearly as to what nature of the so called “comprehensive suit” she intends to file. There is no averment in the affidavit that due to any defective pleading, the suit is sought to be withdrawn. What is a “comprehensive suit” cannot be a guessing work of the Court. It should be deducible from the affidavit averments. From the reading of the affidavit, it cannot be said that the petitioner has bonafides for withdrawing the suit and this Court is of the opinion that the petitioner has not shown any sufficient cause for withdrawing the suit as contemplated under Order XXIII Rule 1 (3) (b) CPC. The civil revision petition is devoid of merits and is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.