Telangana High Court
Smt. G. Sudha Rani vs Smt. E. Chandrakala on 18 November, 2024
THE HONOURABLE SMT JUSTICE K. SUJANA
CIVIL REVISION PETITION No.416 of 2024
ORDER:
The present Civil Revision Petition is filed challenging the order dated 08.01.2024 passed in I.A.No.828 of 2023 in O.S.No.246 of 2015 by the learned Junior Civil Judge-cum- XIV Additional Metropolitan Magistrate, Ranga Reddy District at Hayatnagar.
2. The brief facts of the case are that the petitioner/plaintiff filed O.S.No.246 of 2015 for perpetual injunction against the respondents/defendants 1 and 2. During pendency of the said suit, the petitioner filed I.A.No.828 of 2023 to withdraw the suit against respondent/defendant No. 2, citing his written statement which would elucidate that he sold the suit property to respondent/defendant No. 1 and was paying rent, thus, not interfering with the possession. The defendant No.2 opposed the same stating that he had consistently attended the Court and that I.A.No.449 of 2018 and I.A.No.893 of 2019 are pending in the said suit and that the suit is at the 2 SKS,J C.R.P.No.416 of 2024 stage of evidence of the petitioner. In the version of defendant No.2, the petitioner had levelled false allegations, and dismissing defendant No.2 would render the suit defective for lack of necessary parties. The trial Court, vide order dated 08.01.2024 dismissed the petition, observing that the reasons made by the petitioner are unconvincing and defendant No.2 is a necessary party to adjudicate the suit. Aggrieved thereby, the petitioner filed the present Civil Revision Petition.
3. Heard Sri J. Venudhar Reddy, learned counsel for petitioner/plaintiff, and Sri Venkat Reddy, learned counsel for respondents/defendants.
4. Learned counsel for the petitioner submitted that the order of the trial Court is challenged on grounds of illegality, material irregularity, and jurisdictional errors which exceed the scope of Order XXIII of the CPC. He further submitted that the trial Court ought to have allowed withdrawal of suit against respondent No.2, as no prejudice would be caused for the reasons stated therein. Citing the precedents of the Hon'ble Supreme Court in Anil Kumar Singh v. Vijaypal 3 SKS,J C.R.P.No.416 of 2024 Singh 1 ; Shiv Prasad v. Durga Prasad 2 and judgment rendered by the Bombay High Court in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council 3 asserted that plaintiff has an unconditional right to withdraw the suit and the trial Court erred in refusing withdrawal on the grounds that respondent No.2 is necessary party. He averred that if the impugned order stands, it would result in failure of justice. Therefore, he prayed the Court to set aside the order dated 08.01.2024 by allowing this Civil Revision Petition.
5. On the other hand, learned counsel for the respondents opposed the submissions made by the learned counsel for the petitioner stating that there are allegations against respondent No.2/defendant No.2 in the plaint and the petitioner cannot seek withdrawal against respondent No.2/defendant No.2. Therefore, the trial Court has rightly passed the impugned order and there are no illegalities or infirmities in the same, as such, prayed the Court to dismiss the Civil Revision Petition.
1 (2018) 12 SCC 584 2 (1975) 1 SCC 405 3 AIR 2003 Bombay 238 4 SKS,J C.R.P.No.416 of 2024
6. This Court, after considering submissions from both counsel and reviewing the record, notes that the petitioner is wife of respondent No.2. Originally, the order granting the relief of perpetual injunction against both respondents was sought for, and thereafter, the respondent No.2 stated through written statement that he sold the disputed property to respondent No.1, who never interfered with the possession of the petitioner. It is averred in this revision petition that the trial Court erred in dismissing the plea of petitioner to withdraw the suit against respondent No.2, citing unnecessary party grounds.
7. At this juncture, it is imperative to note the contents of Order XXIII Rule 1 of CPC, which is relevant to decide the question whether the trial Court is justified in dismissing the petition filed by petitioner seeking to withdraw suit against respondent No.2. Order XXIII Rule 1 reads as under:
"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 5 SKS,J C.R.P.No.416 of 2024 contained in Rules 1 to 14 of Order 32 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 person.
(3) Where the court is satisfied--
(a) that a suit must fail by reason of some formal defect, or
(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), or
(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 precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.6
SKS,J C.R.P.No.416 of 2024 (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."
8. Reading of Order XXIII Rule 1 would go to show that the plaintiff has a right to file an application to abandon his suit or part thereof at any time after its filing. However, if the permission to withdraw the suit, whether full or part thereof is granted under Rule 1(3), then the plaintiff would be granted liberty to institute a fresh suit on terms as the Court may deem fit and proper to impose on the plaintiff in respect of the same subject-matter of the suit or part thereof. That apart, the Hon'ble Supreme Court in the case of Shiv Prasad (supra 2), held that every applicant has unconditional right to unconditionally withdraw her application.
9. Reverting to the facts of the case on hand, as the petitioner sought to withdraw suit against defendant No.2 without seeking liberty to file a fresh suit, the trial Court cannot compel the petitioner to proceed against respondent 7 SKS,J C.R.P.No.416 of 2024 No.2. That being so, the order under revision is liable to be set aside, being contrary to law.
10. In the result, this Civil Revision Petition is allowed setting aside the order dated 08.01.2024 passed in I.A.No.828 of 2023 in O.S.No.246 of 2015 by the learned Junior Civil Judge-cum-XIV Additional Metropolitan Magistrate, Ranga Reddy District at Hayatnagar permitting the petitioner to withdraw the suit against respondent No.2/defendant No.2.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date: 18.11.2024 PT