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2023 DIGILAW 190 (KAR)

Krishna v. Ashok

2023-02-01

M.G.S.KAMAL

body2023
JUDGMENT/ORDER 1. The present appeal is filed by the appellant/plaintiff aggrieved by the judgment and order dtd. 23/1/2015 passed in RA.No.23/2011 on the file of Senior Civil Judge, Honavar (itinerary at Bhatkal) (hereinafter referred to as "the First Appellate Court" fir short), in and by which the First Appellate Court while allowing the appeal filed by defendant No.1, set aside the judgment and decree dtd. 8/4/2011 passed in O.S.No.42/2005 on the file of Additional Civil Judge (Jr.Dn.), Bhatkal (hereinafter referred to as "the Trial Court). 2. The above suit in O.S.No.42/2005 was filed by the appellant/plaintiff seeking relief of permanent injunction, which was decreed as prayed for by the Trial Court. Aggrieved by the same, defendant No.1 preferred regular appeal in R.A.No.23/2011 before the First Appellate Court. The First Appellate Court by its impugned judgment and order dtd. 23/1/2015 allowed the appeal and set aside the judgment and decree passed by the Trial Court. Being aggrieved by the same, the plaintiff/appellant has filed the present appeal. 3. Learned counsel for the appellant has filed an application under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 seeking permission to withdraw the suit in O.S.No.42/2005 reserving liberty to the plaintiff to file fresh suit on the subject matter in future if need arises, on the premise that at present there is no obstruction from the defendants and that cause of action is not subsisting. 4. The said application has been vehemently opposed/resisted by the learned counsel for the respondents/defendants contending that though respondents/defendants have no objection in appellant/ plaintiff withdrawing the suit, the appellant/plaintiff shall not take any advantage of the contents of the affidavit accompanying the application and also shall not take advantage of the averments made therein regarding his claim of he being in possession, as respondents/ defendants are in possession of the property. 5. Heard learned counsel for the parties and perused the records. 6. Suit is one for bare injunction. The Trial Court had decided the suit and the First Appellate Court while allowing the appeal filed by the respondent, set aside the judgment and decree of the Trial Court. 7. It is for the plaintiff to choose such remedy as may be available under law however without prejudice to the lawful right of the defendant, except the apprehension expressed as above no other grounds are urged by the learned counsel for respondent. 7. It is for the plaintiff to choose such remedy as may be available under law however without prejudice to the lawful right of the defendant, except the apprehension expressed as above no other grounds are urged by the learned counsel for respondent. In the circumstances, the application filed seeking withdrawal of the suit requires to be considered. 8. Application in I.A.No.1/2022 filed under Order XXIII Rule 3 of CPC is allowed. The appellant is permitted to withdraw the suit. 9. No finding or observation is made with regard to the claim of the plaintiff being in possession of the property or claim of the defendants being in possession of the property. All contention of the parties are kept open. 10. In view of the above, the present appeal does not survive for consideration and the same is accordingly disposed off. 11. In view of disposal of the appeal, pending applications if any, do not survive for consideration and the same are disposed of accordingly. 12. Registry is directed to transmit the Records to the Concerned Court along with copy of this judgment.