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2024 DIGILAW 537 (AP)

E. Pushpa v. G. Lingama Naidu

2024-05-07

KIRANMAYEE MANDAVA

body2024
ORDER : 1. The Civil Revision Petition is filed under Article 227 of the Constitution of India, challenging the order dated 07.12.2018 in I.A. No. 640 of 2018 in O.S. No. 69 of 2012 on the file of the Principal Senior Civil Judge, Chittoor. 2. The respondent/plaintiff filed an application under Order XXIII Rule 1 (3) of the Code of Civil Procedure, seeking permission of the Court to withdraw the suit, stating that the averments of the plaint could not be drafted as per his instructions and, that the schedule of the properties was also not properly incorporated. And that various documents which the plaintiff was relying on were also not referred to in the plaint and that any number of amendments/corrections to the plaint would rectify the defects in the suit. He, therefore, sought the liberty of the court to withdraw the suit and permit him to file the suit afresh based on the same cause of action. 3. The learned trial Judge relying on the decision of the Hon’ble Supreme Court of India in the case of Anathula Sudhakar vs. P. Buchi Reddy, AIR 2008 SC 2003 wherein it is observed as under: “the suit schedule properties are not in the possession of the plaintiff and they are in the possession of the defendants. Hence, it can be said that this suit filed with the reliefs for recovery of possession and perpetual injunction per se is not maintainable.” Allowed the petition permitting the plaintiff to withdraw the suit, granting liberty to the respondent/plaintiff to file a comprehensive suit afresh for declaration of title, recovery of possession and consequential relief of injunction against the defendants on the same cause of action, on the basis of which the suit was filed. Assailing the same the present Civil Revision Petition. 4. Heard Sri K.V.L. Narasimha Rao, learned counsel for the petitioner. 5. The learned counsel for the petitioner contends that the learned Judge has erred in granting liberty to the respondent/plaintiff to file the suit afresh on the same cause of action, which, by efflux of time, has become time-barred. It is further contended that the so called in diligent act of the counsel for the plaintiff would not constitute a valid reason for the plaintiff to ask for withdrawal of the suit and file the same afresh, as per his convenience. It is further contended that the so called in diligent act of the counsel for the plaintiff would not constitute a valid reason for the plaintiff to ask for withdrawal of the suit and file the same afresh, as per his convenience. And further contended that if the said advocate who has set the pleadings in the plaint was not prudent enough as contended, an action against the said advocate could have been initiated. In the absence of the same, it is contended that the claim of the plaintiff to seek withdrawal of the suit and liberty to file the suit afresh is not a bona-fide claim, which the learned judge ought not to have allowed. 6. Considered the submissions perused the record. The provisions of Order XXIII Rule 1 of CPC reads as under: “ORDER XXIII - WITHDRAWAL AND ADJUSTMENT OF SUITS 1. Withdrawal of suit or abandonment of part of claim: (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons. (3) Where the Court is satisfied: (a) that a suit must fail by reason of some formal defect. (b) that 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, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff: (a) abandons any suit or part of claim under sub-rule (1). (4) Where the plaintiff: (a) abandons any suit or part of claim under sub-rule (1). (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” 7. The learned counsel for the petitioner relied on the following decisions: (i) The decision of the Hon’ble Supreme Court in the case of S. Malla Reddy vs. Future Builders Cooperative Housing Society, (2013) 9 SCC 349 . (ii) The Hon’ble Supreme Court in the case of K.S. Bhoopathy vs. Kokila, 2000 (5) SCC 458 observed as under: “11. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts; (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the Court, in that case he will be precluded from suing again on the same cause of action. Neither the plaintiff can abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC. 12. Such liberty being granted by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC. 12. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit Therefore on principle an application by a plaintiff under sub-rule 3 cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule 1, In (he former it is actually a prayer for concession from the Court after satisfying the Court regarding existences of the circumstances justifying the grant of the such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit roust fail by reason of some formal defect and the other where the Court is satisfied that 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. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or courts below. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or courts below. Grant of permission for withdrawal of a suit with leave to file afresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases.” (iii) In the decision of the High Court of Himachal Pradesh in the case of Janak Raj and Another vs. Sukhdev and Others, 2019 Law Suit (HP) 202 wherein it is observed as under: “23. It is settled law that permission to withdraw the suit with liberty to file a fresh suit cannot be granted mechanically and the court is duty bound to satisfy itself that there exist proper grounds for granting such permission. Such permission cannot be resorted to when the claim set out in the original suit is weak. The Hon'ble Supreme in K.S. Bhoopathy and Others vs. Kokila and Others, (2000) 5 SCC 458 has held as follows.....” (iv) In the decision of the Composite High Court of Telangana and Andhra Pradesh in the case of K. Chenchu Lakshmi vs. P. Raja Reddy and Others, 2017 (6) ALT 667 wherein it is observed as under: “11. The Hon'ble Supreme in K.S. Bhoopathy and Others vs. Kokila and Others, (2000) 5 SCC 458 has held as follows.....” (iv) In the decision of the Composite High Court of Telangana and Andhra Pradesh in the case of K. Chenchu Lakshmi vs. P. Raja Reddy and Others, 2017 (6) ALT 667 wherein it is observed as under: “11. There is no dispute with regard to the proposition of law laid down in the judgments of this Court and also by the Apex Court in the judgments referred to above, but it is to be noted here that the petitioner herein made an application vide I.A. No. 26 of 2015 to implead Smt. R. Vimalamma as D-5, who is the wife of second defendant and also filed another I.A. i.e. I.A. No. 27 of 2015 seeking amendment of survey numbers of the plaint schedule properties which are said to be in the name of R. Vimalamma. Both the I.As. came to be dismissed against which C.R.Ps. were filed. That being the position, the question of permitting the petitioner to withdraw the suit with a liberty to file a fresh suit would not arise. When the petitioner has availed the remedy of including Smt. R. Vimalamma as a party and also took steps for getting the property included and when the said civil revisions are pending consideration before this Court, the question of permitting the petitioner to withdraw the suit may not be permissible. It appears to be a case where the petitioner being unsuccessful in getting interim orders in the said C.R.Ps. thought of withdrawing the suit. Since the dispute as to whether the said R. Vimalamma has to be included as a party and also as to whether the properties can be included in the said suit, are pending adjudication before this Court and when the trial court has already held that their inclusion is impermissible, which is not stayed by this Court, I see no ground to grant permission for withdrawal of the suit.” (v) In the decision of the High Court of Andhra Pradesh at Hyderabad in the case of Amrutha vs. G. Ravinder Reddy and Another, 2006 (6) ALD 757 wherein it is observed as under: “........Viewed in this context, it is evident that the respondents based their claim, through the present amendment, only on the alleged lapse on the part of the previous Counsel. If what is stated by them is true, it should have entailed initiation of steps, or exchange of notices, between the respondents and their previous Counsel. In the absence of the same, it has to be proceeded as though, what is stated by them is true and concerned Counsel has to bear the blame. Ordering amendment on this context would amount to recording a finding as to the lapse on the part of the previous Counsel. Such an approach would be unsafe for the legal profession as a whole. In a given case, the parties may throw blame on the legal profession and its members, as a poly, to advance their causes, or to cover lapses on their part. Hence, this Court finds that the respondents cannot be permitted to file these applications simply throwing the blame on the previous Counsel, without satisfying the Court, at least prima facie as to such lapse.” 8. The Hon’ble Supreme Court while dealing with a case in K.S. Bhoopathy vs. Kokila, referred supra where certain allegations were made against the advocate, while seeking strike out of the pleadings in the written statement and permit the defendants to file the written statement. In the said factual background the Hon’ble Supreme Court observed that the practice of making wild allegations against the advocate without substantiating the said allegations should not be encouraged as the same would lead to smudging the career of the innocent advocates. 9. The decisions relied upon by the learned counsel for the petitioner in the cases of K. Chenchu Lakshmi vs. P. Raja Reddy and Others and Amrutha vs. G. Ravinder Reddy and Another, referred supra are distinguishable on facts in as much as they are not on the issue involved in the present case. And the decision of the Hon’ble Supreme Court at 3 supra though is on the issue of Order XXIII Rule 1 in the said case, at the stage of second appeal, the plaintiff sought withdrawal of the suit. Under the said circumstances, the Hon’ble Apex Court observed that the mandate contained under the Order XXIII Rule 1, Sub Rule 3 (b), should scrupulously be followed and the Court should be satisfied before granting liberty that the sufficiency of the grounds exists to institute a fresh suit for the same claim or part of the claim from the same cause of action. 10. 10. In the present case, the learned Judge has given a categorical finding that if the suit is allowed to proceed, it may fail for the reason that the plaintiffs are not in possession of the suit schedule properties. Therefore, the relief sought for recovery of possession and injunction without seeking a declaration of title may not be maintainable. The finding of the learned Judge, in my considered view, is in accordance with the provisions of Order XXIII Rule 1(3) CPC. And the order of the learned trial Judge does not call for interference of this Court. 11. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. 12. As a sequel, interlocutory applications, pending if any, shall stand closed.