Telangana High Court
Pothu Prabhavathi vs Ganduri Shanker on 9 September, 2021
Bench: T.Amarnath Goud
IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
****
C.R.P.No.135 of 2021
Between:
Pothu Prabhavathi
Petitioner
VERSUS
Ganduri Shanker and two Others.
Respondents
JUDGMENT PRONOUNCED ON: 09.9.2021
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : No
_________________________
T.AMARNATH GOUD, J
2
* THE HON'BLE SRI JUSTICE T. AMRNATH GOUD
+ CIVIL REVISION PETITION No.135 OF 2021
% 09.9.2021
# Pothu Prabhavathi
Petitioner
VERSUS
$ Ganduri Shanker and two Others.
Respondents
! Counsel for Petitioner : Sri M/s. Avadhani & Ambati
Associates.
^ Counsel for the respondents : Sri A. Prabhakar Rao for R.1
: Sri B.Nalin Kumar for R.2 & R.3.
<GIST:
> HEAD NOTE:
? Cases referred
1 (2017) 5 SCC 63
2 (2000) 5 SCC 458
3 2020 SCC OnLine HP 1793
4 (1996) 11 SCC 167
3
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
CIVIL REVISION PETITION No.135 of 2021
ORDER:
1 Challenge in this Civil Revision Petition is to the order dated
23.12.2020 made in I.A.No.752 of 2020 in O.S.No.4 of 2020 on the
file of the Court of the II Additional District Judge Nalgonda at
Suryapet, wherein and whereby the trial Court dismissed the
petition filed by the petitioner/plaintiff under Order XXIII Rules (1),
(3) r/w Section 151 CPC to grant leave to the petitioner to
withdraw the suit with liberty to institute fresh and comprehensive
suit in respect of all properties liable for partition and other reliefs
and against all the parties interested in the property for proper and
effectual adjudication of the matter.
2 For the sake of convenience, parties to this revision petition
will, hereinafter, be referred to as they were arrayed before the trial
Court.
3 The facts of the case, in nutshell, are that the petitioner filed
the suit against her brothers and sister in law for partition of suit
schedule property. After filing of the present suit i.e. O.S.No.4 of
2020, she came to know that there are some other properties liable
for partition and hence filed the I.A.No.752 of 2020 seeking to
withdraw the present suit with permission to file a fresh suit. The
respondents opposed the said application. The trial Court, after
hearing both sides, dismissed the petition. Hence the present Civil
Revision Petition.
4 The learned counsel for the petitioner submitted that the
trial Court failed to take into consideration the settled legal
position that in a suit for partition of joint property, all the parties
having interest in the property shall be joined as parties and that
all the properties available for partition shall be shown ion the suit.
He further submitted that the trial Court misread the provision of
law and hence prayed to allow the Civil Revision Petition. He relied
on the judgment of the Hon'ble Apex Court in V.Rajendran V.
Annasamy Pandian1.
5 On the other hand, the learned counsel for the first
respondent Sri A. Prabhakar Rao and the learned counsel for the
respondent Nos.2 and 3 Sri B.Nalin Kumar, in one voice,
submitted that the Civil Revision Petition is liable to be dismissed
since the defects pointed out by the petitioner are curable defects
before the trial Court by way of carrying out amendment to the
plaint in respect of the plaint schedule properties and by bringing
the necessary parties as defendants. They further submitted that
in the plaint the plaintiff stated that there are no other parties
except the petitioner and the other sisters are settled and they
have no interest in the property and with regard to the schedule of
property she stated that there are some left over properties which
she came to know after filing of the suit, and thus she feels to
bring the same on record, which cannot be accepted at this
juncture for the purpose of withdrawing the suit and for filing of a
comprehensive suit. The defects she raised are curable and prayed
to dismiss the Civil Revision Petition. They relied on the following
1 (2017) 5 SCC 63
judgments: K.S.Bhoopathy V. Kokila2, Joginder Singh V.
Surinder Pal3, and Bakhtawar Singh V. Sada Kaur4.
6 Order 23, Rule (1) (3) CPC Reads as under:
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
(1) XXX
(2) XXX
(3) Where the Court is satisfied,-- (a) that a 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 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 Here, formal defect means a defect of form, which is
prescribed by Rules or Procedure. A defect which goes to the root
of the plaintiff's claim is not a formal defect. The formal defect may
be omission to obtain permission of Court to file the suit,
misjoinder of parties or cause of action, failure to disclose cause of
action for the Plaint, erroneous valuation of the subject matter of
the suit and institution of a suit in a Court which has no
jurisdiction to entertain it.
2 (2000) 5 SCC 458
3 2020 SCC OnLine HP 1793
4 (1996) 11 SCC 167
8 Let me deal with the factual situation in touchstone of the
legal principle and the principle enunciated in the case cited
supra.
9 As seen from the record, it is manifest that the suit is still at
the stage of filing of written statements by the defendants. It is
also noticeable that that some third parties filed petitions to
implead them as parties to the suit. The suit must fail if there is
incurable formal defect in the suit. But if such a formal defect can
be rectified by way of amendment, there is no necessity to seek
withdrawal of the suit. As per the averments of the affidavit filed
in support of the petition, the petitioner wanted to withdraw the
suit on the ground that some more parties and some more
properties are to be added. If such is the intention of the petitioner,
she is always at liberty to file a petition under Order I Rule 10 CPC
seeking amendment of the plaint. Instead of availing such remedy,
the petitioner seeks to totally withdraw the suit, which in my
considered opinion, is not permissible.
10 V.Rajendran case (1 supra) relied on by the learned counsel
for the petitioner has no applicability to the facts of the present
case since the crux of the said judgment is with regard to the
survey number of the schedule property which went to the very
root of the subject matter of the suit.
11 The trial Court has given cogent and convincing reasons for
the findings it has arrived at. I see no irregularity or illegality, in
the impugned order warranting interference of this Court in
exercise of jurisdiction under Article 227 of the Constitution of
India.
12 In Joginder Singh case (3rd supra) the Hon'ble Apex Court
held as under:
".......it is well settled that non-joinder or non-
description of suit land is not a formal defect, rather same
can be cured by of filing an appropriate application. In the
case at hand, precise ground of the plaintiff is that since his
counsel failed to institute suit against proper party, suit
filed by him may fail, but such defect, if any, can be cured
by filing an application for impleadment of parties or by way
of amendment of the plaint."
13 Having regard to the facts and circumstances of the case and
also the principle enunciated in the cases cited supra, the Civil
Revision Petition is dismissed, giving liberty to the petitioner to file
appropriate application before the trial Court under CPC, seeking
to implead necessary parties and to amend the plaint in respect of
schedule of properties, if she is so advised. No order as to costs.
Miscellaneous petitions, if any, shall also stand dismissed.
__________________________
T. AMARNATH GOUD, J.
Date: 09.9.2021
L.R. Copy be marked
B/o Kvsn
