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2023 DIGILAW 769 (AP)

Suddapalli Brahmendra Rao, S/o. Singaiah v. Pittala Anjaneyulu @ Anjaiah, S/o. Peda Kondaiah

2023-05-05

SUBBA REDDY SATTI

body2023
ORDER : 1. Plaintiff, in the suit filed the above revision against the order dated 26.07.2022 passed in I.A.No.895 of 2022 in O.S.No.256 of 2014 on the file of learned Principal Junior Civil Judge, Ongole. 2. Plaintiff filed suit O.S.No.895 of 2022 against the defendant for recovery of possession of suit schedule property by directing the defendant to remove the structures shown as “A-1” in the plaint plan and for consequential injunction. 3. In the plaint, it was contended, inter alia, that suit schedule property is ancestral property of the plaintiff. Father of the plaintiff, Suddapalli Singaih settled the property in favour of the plaintiff and his brother Tirumala Rao under registered settlement deed dated 14.08.2014 under document No.7504 of 2014 with absolute rights. Brother of the plaintiff is staying in USA. Plaintiff is looking after all the affairs of his brother. Father of the plaintiff gifted Ac.0-05 cents of site to the Panchayat for construction of school building to the West of the plaint schedule property and a building was also constructed. Plaintiff, being employee is working at Hyderabad. Father of the plaintiff went to Hyderabad and stayed there for two weeks. After his return from Hyderabad, plaintiff’s father noticed that pits were dug and basement was also laid for raising permanent structures in the South West corner of ‘A’ marked plaint schedule property to an extent of 15 feet x 41 feet = 615 square feet equivalent to 68 square yards of site which is shown as ‘A-1’ marked portion in the plaint plan. Plaintiff’s father questioned illegal act of the defendant. However, defendant declined to hear the words of plaintiff’s father. On receiving information, plaintiff came to the village and noticed encroachment and questioned the defendant, but there was no response from the defendant. Hence, filed the suit for relief stated supra. 4. Defendant filed written statement and contended inter alia, that suit schedule property is located in survey No.58. According to re-survey and re-settlement register of the village of Rachavaripalem, survey No.58 is grama kantam site, which is exclusive property and belongs to entire villagers. The total extent in survey No.58/1 is 17.62 cents, which is grama kantam site. The extent of land in survey No.58/2 is Ac.0-63 cents, which belongs to third parties including father-in-law of the defendant. According to re-survey and re-settlement register of the village of Rachavaripalem, survey No.58 is grama kantam site, which is exclusive property and belongs to entire villagers. The total extent in survey No.58/1 is 17.62 cents, which is grama kantam site. The extent of land in survey No.58/2 is Ac.0-63 cents, which belongs to third parties including father-in-law of the defendant. As per revenue records, neither plaintiff and his father nor their ancestors were in possession of the suit schedule property at any point of time. Plaintiff conveniently prepared a false plaint with wrong topography. Father of the plaintiff never gifted any site to Panchayat for construction of school building. The school buildings were constructed in grama kantam site. Defendant never encroached upon the property of plaintiff or his father. Suit schedule property is Gram Panchayat site. Plaintiff created false certificate in the name and style of property certificate without any right whatsoever. Plaintiff wrongly showed the plan and boundaries except the western side boundary. Government sanctioned additional classrooms and the same was allotted to the School Management Committee, MPUP School, Rachavaripalem village, Maddipadu Mandalam. The convener of School Management Committee addressed a letter to the Secretary of Rachavaripalem Grama Panchayat for approval to construct additional classroom for the Upper Primary School. After receiving said letter, Gram Panchayat passed a resolution in favor of School Management Committee. Committee with the assistance of Sarpanch of village is constructing additional class rooms. Defendant being Sarpanch is getting constructed class rooms as per norms of Government. The entire grama kantam site is an extent of Ac.0-42 cents with 7th and 8th class rooms. Constructions were made up to lintel level. Site is exclusively allotted by grama panchayat for various public purposes and prayed to dismiss the suit. 5. Suit is coming up for trial. At that juncture, I.A.No.895 of 2022 under Order XXIII Rule 1 of CPC is filed seeking permission to withdraw the suit with a liberty to file a fresh suit. 6. In the affidavit filed in support of the petition, it was contended that the suit was filed for recovery of possession of suit schedule site of 69 square yards out of Ac.0-25 cents. During covid-19 pandemic period, at the instigation of the defendant, Grampanchayat of Rachavaripalem started construction of Grama Secretariat in entire Ac.0-25 cents. Therefore, petitioner filed W.P.No.14180 of 2020 and W.A.No.817 of 2021. During covid-19 pandemic period, at the instigation of the defendant, Grampanchayat of Rachavaripalem started construction of Grama Secretariat in entire Ac.0-25 cents. Therefore, petitioner filed W.P.No.14180 of 2020 and W.A.No.817 of 2021. W.A.No.817 of 2021 was allowed by order dated 05.01.2022 wherein petitioner was directed to file civil suit before competent court. Therefore, petitioner is intending to file suit for entire Ac.0-25 cents including the suit schedule property. Hence, plaintiff filed application to withdraw the suit and grant leave to file fresh suit for entire site. 7. Counter was filed by the respondent/defendant opposing the application. It was contended that seeking permission to withdraw the suit is nothing but filling up the blanks. Eventually, prayed to dismiss the petition. 8. Trial Court by order dated 26.07.2022 allowed the application in part permitting to withdraw the suit subject to payment of costs of Rs.2,000/- to the defendant. However, liberty to file fresh suit is not granted. 9. Heard learned counsel on either side. 10. Learned counsel for the petitioner would contend that application to withdraw the suit was filed pursuant to the observations/directions in W.A.No.817 of 2021. Trial Court having granted permission to withdraw the suit ought to have granted leave to file a fresh suit. He would also submit that without granting leave, allowing the petitioner to withdraw the suit, will cause grave loss to the petitioner and such a course is not permissible. 11. Learned counsel for the respondent, on the other hand, while supporting order of the trial Court would contend that petitioner failed to prove specific ingredients of Order XXIII Rules 1 and 2 seeking withdrawal of the suit. However, trial Court considered withdrawal of the suit and declined to grant leave to file fresh suit. 12. The point for consideration is, when a petition is filed seeking withdrawal of the suit with liberty to file fresh suit, granting permission to withdraw the suit without granting leave, is permissible? 13. Order XXIII of CPC deals with withdrawal and adjustments of the suits. Rule 1 of Order XXIII manifests that at any time, after institution of suit, plaintiff may against all or any of the defendants abandon his suit or abandon a part of his claim. If such an application is filed, the Court on being satisfied regarding condition contained in Rule 3, permit petitioner to withdraw the suit by granting leave. Rule 1 of Order XXIII manifests that at any time, after institution of suit, plaintiff may against all or any of the defendants abandon his suit or abandon a part of his claim. If such an application is filed, the Court on being satisfied regarding condition contained in Rule 3, permit petitioner to withdraw the suit by granting leave. Court can also impose costs while permitting the plaintiff to withdraw the suit. 14. Permission to withdraw the suit would arise if the suit fails by reason of some formal defect, or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. While granting permission to withdraw the suit, Court can also grant liberty to institute fresh suit in respect of subject matter of such suit. 15. A careful analysis of the scheme indicates that whenever an application is filed seeking withdrawal of the suit with leave to file a fresh suit, the Court shall either accept the application in toto or reject the application. If leave is refused, Court should simply dismiss the application without dismissing the suit on the basis that it has been withdrawn. Court should not make order disposing of the suit on the assumption that plaintiff would withdraw the suit. If the Court is of the opinion that petitioner is not entitled to liberty sought for by him, the Court shall dismiss the application without dismissing the suit on the basis that it has been withdrawn. 16. When an application for permission to withdraw the suit to institute fresh suit is made, it is not open to the Court to treat it as if it is an application filed under Rule 1 for grant of withdrawal and to refuse the prayer for permission to bring a fresh suit. The prayer under sub-rule (2) must be treated as one act and the Court may either reject the entire prayer or allow the suit to proceed or allow the entire prayer i.e. permit withdrawal of the suit with liberty to bring fresh suit. If the Court grants permission to the petitioner to withdraw, however refuses permission to institute a fresh suit, plaintiff would be deprived of carrying on with the suit as best as he can and would also not be permitted to file a fresh suit on the same cause of action. If the Court grants permission to the petitioner to withdraw, however refuses permission to institute a fresh suit, plaintiff would be deprived of carrying on with the suit as best as he can and would also not be permitted to file a fresh suit on the same cause of action. The Court cannot divide petition into two and accept withdraw and refuse to give liberty in the same order. 17. In the case on hand, application was filed seeking permission to withdraw the suit and also for grant of leave to file fresh suit. The trial Court allowed the application insofar as granting permission to withdraw the suit. However, leave was not granted to file fresh suit. 18. As narrated supra suit was filed for recovery of possession of property to an extent of 69 square yards of vacant site. Pending the suit, plaintiff filed W.P.No.14180 of 2020 against Gram Panchayat and others to declare the action of respondents in proceeding for construction of Grama Secretariat in petitioners’ ancestral property in an extent of Ac.00-25 cents in survey No.58/1 of Rachavaripalem village. The said writ petition was dismissed by order, dated 07.04.2021. Aggrieved by the same, petitioners filed W.A.No.817 of 2021. W.A. was allowed setting aside the order passed in aforementioned writ petition granting liberty to the petitioner to approach competent civil court and establish his title over subject property. Division Bench also protected interest of the petitioner for couple of months to institute civil suit. The present application is filed in consonance with the observations of Division Bench seeking permission to withdraw and to file fresh suit. However, Court below permitted plaintiff to withdraw the suit and refused to grant leave. Court below also awarded costs of Rs.2,000/- to be paid to the defendants. 19. In Somaraju Sree Rama Mohana Rao v. Soma Raju Thulasi Prasada Rao and another, 1962 SCC Online AP 48, it was held that though “other sufficient grounds” need not be construed ejusdem generis with “formal defect”, grounds which are not at least analogous to what is meant by “formal defect” grounds which are not at least analogous to what is meant by formal defect should not weight with Courts in granting permission. 20. 20. In Kancherla Sarveswara Rao and Others v. Kancherla Veerraju and others, 1955 SCC Online AP 230, it was held that ejusdem generis rule does not apply to the construction of the words “other sufficient grounds” and the formal defect mentioned in Order XXIII Rule 1(2)(a) is illustrative of the grounds referred to in Clause (b) and although the grounds need not be ejusdem generis with the grounds mentioned in Clause (a), they must by “atleast analogous” with them. 21. Since trial Court allowed the application and accorded permission to withdraw the suit, without granting leave to file a fresh suit, this Court, in view of the observation made supra, deems it appropriate to set aside order of the trial Court. 22. In view of the above discussion, order dated 26.07.2022 passed in I.A.No.895 of 2022 in O.S.No.256 of 2014 on the file of learned Principal Junior Civil Judge, Ongole is set aside. The matter is remitted back to the trial Court. Trial Court shall consider the application keeping in view all the above observations made supra and decide the application on merits, within a period of four weeks from the date of receipt of a copy of the order. 23. With the above direction, this Civil Revision Petition is disposed of. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.