The vs Boya Nadipi
2022 Latest Caselaw 716 AP

            HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                          C.R.P.No.255 of 2020

ORDER:

The petitioners herein had filed O.S.No.20 of 2007 before the

Principal District Judge, Vizianagaram against the respondents herein

seeking recovery of possession of the plaint schedule property and for

permanent injunction restraining the respondents from interfering with the

affairs of the 1st petitioner-Trust. Thereafter, an application was filed for

amending the plaint by way of I.A.No.2233 of 2012, which was allowed on

07.03.2013. The petitioners again approached the trial Court by way of

I.A.No.1752 of 2014 for further amendment of the plaint. This application

to amend the prayer in the plaint as well as certain pleadings in the plaint

was dismissed on 04.12.2014. Aggrieved by the same, the petitioners had

approached the erstwhile High Court of Judicature at Hyderabad for the

State of Telangana and the State of Andhra Pradesh by way of

C.R.P.No.1700 of 2015, which was also dismissed on 31.12.2018. The

matter was then carried to the Hon'ble Supreme Court of India by way of

Special Leave to Appeal (c) No.7152 of 2019, which came to be dismissed

on 25.03.2019.

2. After this, the petitioners again moved I.A.No.590 of 2019

under the provisions of Order XXIII Rule 1(3) read with Section 151

C.P.C., for permission to withdraw the suit with liberty to file a fresh suit

in the interest of justice. This application was dismissed on 25.09.2019.

The trial Court took the view that the requirement of Order XXIII Rule

1(3) satisfying the grounds on which such permission is sought, had not

been made out. Aggrieved by the said order of dismissal, the present

revision petition has been filed by the petitioners.

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3. Heard Sri G.V.S. Kishore Kumar, learned counsel appearing

for the petitioners; Sri V.V. Ravi Prasad, learned counsel appearing for

respondents 2 to 4, 8 and 10 and Sri E.V.V.S. Ravi Kumar, learned counsel

appearing for respondents 6 and 7.

4. Sri G.V.S. Kishore Kumar, learned counsel appearing for the

petitioners assails the order under revision on the ground that the

application was not considered in the right perspective. It is his case that

all the facts relating to the suit and various developments in the suit are

already before the trial Court and as such the trial Court ought to have

gone into the crux of the matter without insisting on the formality of

pleadings. He further submits that in view of the refusal of the trial Curt,

to amend the pleadings, as sought in I.A.No.1752 of 2014, it is necessary

to withdraw the suit to ensure that all the essential pleadings and prayers

are raised by way of a fresh suit. He would also submit that the trial Court

dismissed the application under revision on an erroneous ground of

limitation barring a fresh suit. The learned counsel would point to Section

10 of the Limitation Act, which stipulates that there is no limitation as far

as the Trust properties are concerned. Sri G.V.S. Kishore Kumar would

also rely upon the judgment of the erstwhile High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra Pradesh

reported in Telugu Chinna Thirupathaiah vs. Boya Nadipi1.

5. Sri V.V. Ravi Prasad, learned counsel appearing for the

respondents would submit that the affidavit filed in support of the

application by the petitioners, does not make out any case under Order

XXIII Rule 1(3) and in the absence of any pleadings the trial Court had

dismissed the application. In the circumstances, he would submit that

2013 (4) ALD 814 3 RRR,J C.R.P.No.255 of 2020

nothing further remains in the revision petition. The learned counsel

would also rely upon the judgments in K.S. Bhoopathy and Ors., vs.

Kokila and Ors.,2; G. Achanna vs. P. Pratap Reddy3; and Soma

Raju vs. Samanthu Sivaji Ganesh and Anr.,4 and an unreported

judgment of the Hon'ble High Court of Judicature at Hyderabad for the

State of Telangana and the State of Andhra Pradesh dated 21.12.2018 in

C.R.P.No.1700 of 2015. The learned counsel would also seek to

distinguish the judgment cited by the learned counsel for the petitioners.

6. Order XXIII Rule 1(3) reads as follows:

(1) xxxxxxxxx

(2) xxxxxxxxx

(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.

7. A bare perusal of this provision makes it clear that

permission to withdraw a suit with liberty to institute a fresh suit can be

given by a trial Court only upon being satisfied that the suit must fail by

reason of some formal defect or 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. To reiterate, a Court cannot grant permission to

(2000) 5 SCC 458

2007 (6) ALT 635

2008 (6) ALT 215 4 RRR,J C.R.P.No.255 of 2020

withdraw the suit with leave unless the Court is satisfied that either of the

two conditions or both the conditions are complied with. This would mean

that necessary pleadings for the Court to arrive at such a conclusion

would be necessary.

8. In the present case, the relevant pleading in the affidavit

filed in support of the application is in paragraph-3, which reads as

follows:

"I submit that the above suit is for recovery of possession of the schedule property and such other reliefs. Now the matter is coming for trial. Keeping in view of the new developments and circumstances it is advised by our counsel to withdraw the above suit with liberty to file fresh suit."

9. This pleading does not indicate whether the applicant is

asking for leave to withdraw the suit on the ground that there was a

formal defect or on the ground that there are sufficient grounds for

allowing the petitioners to institute a fresh suit. In the absence of even a

formal pleading as to the ground on which leave is sought, the trial Court

was right in dismissing the said application. The judgments cited by the

learned counsel for the respondent are on similar lines.

10. Sri G.V.S. Kishore Kumar, learned counsel for the petitioners

had relied upon Telugu Chinna Thirupathaiah vs. Boya Nadipi to

contend that permission for withdrawal of a suit should be given without

requiring the petitioner to prove all the grounds on which he intends to

file a fresh suit. It was the further contention of the learned counsel that

the trial Court need not go into the reasons for granting leave and such a

leave should be granted on consideration of all the material in the suit.

11. The facts in that case were that the plaintiff who had filed a

suit for mandatory injunction, sought permission to withdraw the suit on 5 RRR,J C.R.P.No.255 of 2020

the ground that there was a necessity for seeking declaration of title also.

This application was rejected by the trial Court on the ground that the

petitioner therein had not demonstrated to the satisfaction of the trial

Court that such a situation exists and warrants relief to be granted. In the

revision the learned single Judge had held that it would not be open to

the trial Court to insist upon the pleadings and grounds to be proved

before such leave is granted.

12. Sri G.V.S. Kishore Kumar, learned counsel for the petitioners

also relied upon the following judgments:

1. Chikkamadaiah vs. Ningamma & ors5.

2. Sabu Issac vs. Antony Chacko6

3. Chandrakant Pandurang Shingade and another vs. Walchand Gulabchand Bora & another7

4. Ghulam Nabi Bhat & ors vs. Haneefa & ors8

5. Judgment of the Delhi District Court, in TIS Hazari Courts in Suit No. 380/08 in the case between Mr. Karan Nath vs. Mr. Kailash Nath & ors.

6. Rajasundari vs. Gowri9

7. Kandapazha Nadar & ors vs. Chitraganiammal & Ors.10

13. Before referring to the Judgments, it must be stated that the

judgements of the trial Court are not cited before the High Court or the

Hon'ble Supreme Court. In the circumstances, the Judgment of the Delhi

Civil Court is not being taken into account.

14. In all the cases cited above, the party seeking to withdraw

the suit/appeal had set out reasons, as to why they were seeking to

2017 AIR (Kar) 71

2020 SCC online Ker 4230

2019 SCC online Bom 1669

2018 SCC online J&K 665.

2006 (1) CTC 700.

(2007) 7 SSC 65 6 RRR,J C.R.P.No.255 of 2020

withdraw the suit/appeal, with liberty to file a fresh case. A perusal of

these judgments would show that the Courts have generally been liberal

in considering the applications under Order XXIII Rule 1 C.P.C.. However,

none of the said judgments are relevant for the facts of the present case

nor to the issue on the basis of which the present order is being passed.

This is because, the present revision petition is being disposed of on the

singular ground that the petitioner did not set out any grounds in the

application for permitting the withdrawal of the suit under Order XXIII

Rule 1 of C.P.C.

15. The Hon'ble Supreme Court in Kandapazha Nadar & Ors

vs. Chitraganiammal & Ors., considered the effect of withdrawal of a

suit without any adjudication, on a subsequent suit. The relevant

observations of Hon'ble Supreme Court on this issue are extracted below:

"In view of the above judgments, the position in law is clear that when the court allows the suit to be withdrawn without liberty to file a fresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the petitioners herein from taking the defence in the second round of litigation as held in the impugned judgment. The above judgments indicate that if the plaintiff withdraws the suit, the order of the court allowing such withdrawal does not constitute a decree under Section 2(2) of Code. That in any event, it will not preclude the petitioners herein (defendants in second round) from raising the plea that the sale deed executed by Chelliah Nadar on 26.2.73 in favour of Thangaraj Nadar was not true and valid. Thus, the civil appeal needs to be allowed."

16. The Hon'ble Supreme Court was considering the effect of

Order XXIII Rule 1(4) of C.P.C. The provisions of Order XXIII Rule 1(3),

which is the relevant rule in the present case, did not come up for

consideration before the Hon'ble Supreme Court.

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17. In the present case, there is no pleading of any manner in

the application. Further there is no pleading as to whether the petitioners

would be relying on sub-clause (a) or sub-clause (b) of Rule 1(3) of Order

XXIII C.P.C. In the circumstances, the said judgments cited by the learned

Counsel for the petitioners, would not assist the petitioners in any

manner.

18. In these circumstances, I do not find any reason to interfere

with the orders of the trial Court. Accordingly, the civil revision petition is

dismissed. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

_________________________ R. RAGHUNANDAN RAO, J.

9th February, 2022
JS/RJS
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                                          C.R.P.No.255 of 2020




         HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




                   C.R.P.No.255 of 2020




                   09th February, 2022
JS/RJS