Shashikanth vs P. Jangaiah
2022 Latest Caselaw 3014 Tel

     HIGH COURT FOR THE STATE OF TELANGANA

                           *****

                   C.R.P.No.1904 of 2013

Between:

Shashikanth & another.

                            .....Petitioners
     And

P. Jangaiah.
                               .......Respondent


JUDGMENT PRONOUNCED ON : 23.06.2022


HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY


1.   Whether Reporters of Local newspapers    :   Yes/No
     may be allowed to see the Judgment ?

2.   Whether the copies of judgment may be    :   Yes/No
     marked to Law Reporters/Journals ?

3.   Whether Their Ladyship/ Lordship wish to :   Yes/No
     see the fair copy of the judgment ?




                       _________________________________
                       G. ANUPAMA CHAKRAVARTHY, J
                                  2
                                                               GAC, J
                                                   CRP.No.1904 of 2013



  HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                    C.R.P.No.1904 of 2013

                         DATE: 23.06.2022

Between :

Shashikanth & another.

                                 .....Petitioners
      And

P. Jangaiah.

                                 .......Respondent

For petitioners              :   M/s.B.Venkat Rama Rao,

                                 Advocate.

For Respondent           :       None appeared.


< Gist:


> Head Note:

? CITATIONS:

1. 2010 (6) RCR (Civil) 364 : 2009 (2) ALT 689
2. AIR 2000 SC 2132
3. AIR 1987 SC 88
4. AIR 1999 SC 509

C/15
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                                                                 GAC, J
                                                     CRP.No.1904 of 2013



     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

         CIVIL REVISION PETITION No.1904 of 2013

ORDER :

1. This revision petition is filed against the orders in

I.A.No.1358 of 2012 in O.S.No.2031 of 2006, dated 30.01.2013 on

the file of I Additional Senior Civil Judge, Ranga Reddy District.

2. Heard learned counsel for revision petitioners and perused

the record. None appeared for respondent.

3. The revision petitioners are the defendants/respondents in

I.A.No.1358 of 2012. Initially, the plaintiff filed a suit for

declaration of title and recovery of possession with consequential

relief for perpetual injunction in respect to the lands admeasuring

Ac.1-06 gts., and Ac.0-18 gts., in Sy.Nos.476 and 478, totally

admeasuring Ac.1-24 gts. The interlocutory application was filed

by the plaintiff seeking permission to withdraw the suit with a

leave of the Court to file a fresh suit against the same

respondents/defendants in respect to the same suit schedule

property and the said I.A. was allowed. Being aggrieved by the

GAC, J CRP.No.1904 of 2013

said orders, the revision petitioners have filed this revision

contending that the lower Court ought not to have allowed the I.A.

as the nature of the suit itself will be changed and the plaintiff

cannot claim reliefs contradicting with each other in the former suit

and the latter suit. It is also contended by the counsel for the

revision petitioners that the plaintiff has filed an I.A. to amend the

pleadings in O.S.No.2031 of 2006 which was dismissed by the trial

Court and in order to cover the lacunas, the present I.A. was filed

to withdraw the suit with a liberty to file a fresh suit.

4. It is also contended by the learned counsel for the revision

petitioners that initially the suit was dismissed for default and later

it was restored on to the record as per the orders in I.A.No.1009 of

2010. It is also the contention of the learned counsel for the

revision petitioners that the cause of action arose for the initial suit

is on the basis of dispossession as such, the plaintiff filed the suit

for declaration of title and recovery of possession and the present

I.A. was filed before the trial Court with a leave to file a suit for

declaration of title and perpetual injunction, which clearly disclose

GAC, J CRP.No.1904 of 2013

that the nature of the suit itself has been changed and the cause of

action itself will change. It is also contended by the learned

counsel for the revision petitioner that a comprehensive suit has

been filed by the plaintiff subsequent to the orders in I.A.No.1358

of 2012, dated 30.01.2013 and the said suit was also dismissed for

default and a restoration application is pending before the trial

Court. It is the contention of the learned counsel for revision

petitioners/defendants that if the orders of the trial Court are not set

aside, irreparable loss will be caused to the defendants. To support

his contentions, the learned counsel relied on the judgment of this

Court in Bijivemula Venkata Subba Reddy v. Jangam Satya

Babu1, on the judgments of Hon'ble Supreme Court in

K.S.Bhoopathy & others v. Kokila & others2, in Sarguja

Transport Service v. State Transport Appellate Tribunal,

Gwalior & others3 and in M/s.Upadhyay & Co., v. State of U.P.

& others4.

1 2010 (6) RCR (Civil) 364 : 2009 (2) ALT 689 2 AIR 2000 SC 2132 3 AIR 1987 SC 88 4 AIR 1999 SC 509

GAC, J CRP.No.1904 of 2013

5. It is an admitted fact that the plaintiff filed a suit for

declaration of title and possession for the above said lands. It is the

contention of the plaintiff that he was in possession and enjoyment

of the suit schedule land till the date of filing of the suit but it was

wrongly mentioned in the plaint pleadings as to the recovery of the

possession of the suit schedule land. It is urged by the plaintiff

before the trial Court that by taking advantage on the said point, the

revision petitioners are frequently interfering with his possession

and enjoyment of the suit schedule property and the plaintiff being

an illiterate, without knowing the real facts, filed the suit and after

coming to know about the mistake occurred in the pleadings, filed

the petition to withdraw the suit with liberty to file a fresh suit.

6. It is the contention of the revision petitioners that the suit

was dismissed for default and I.A.No.1009 of 2010 was filed under

Order 9 Rule 9 of CPC which was allowed by the trial Court and

the suit was restored on to record. Further, the plaintiff filed

another I.A. to implead 2nd defendant which was also allowed and

GAC, J CRP.No.1904 of 2013

at no point of time, the plaintiff did take a plea that he is in

possession of the suit schedule property.

7. The orders of the trial Court reveal about allowing of I.As.

It is also an admitted fact that the plaintiff filed an I.A. under Order

6 Rule 17 to amend the pleadings, which was dismissed by the trial

Court.

8. It is the contention of the plaintiff before the trial Court that

plaintiff is the master of the suit and as such, it is for him to

withdraw the suit and sought permission to file a fresh suit. The

trial Court accepted with the prepositions laid in Pillakathuku

Subbarathnam v. Executive Officer, Polathala [2005(4) ALT

423], in Tarachand Bapuchand v. Gaibihaji Ahmed Bagwan

[1956 Bombay 632] and in K.S.Bhoopathy's case (2 supra), filed

by the plaintiff and came to a conclusion that the plaintiff can

withdraw the suit with a liberty to file a fresh suit.

9. A plaintiff in a suit has full liberty to withdraw the suit at

any stage as envisaged under Order 23 of CPC. The only

GAC, J CRP.No.1904 of 2013

restriction placed upon him is that, if a suit is withdrawn, he cannot

file the fresh suit on the same cause of action and obviously, for the

same relief, unless he reserves himself the right to do so and Court

accords such permission. Rule 1 of Order 23 of CPC, which

governs the withdrawal of a suit, 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 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 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

GAC, J CRP.No.1904 of 2013

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 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."

10. In para 6 of B.V.Subba Reddy's case (1 supra), their

Lordships have held as under :

6. A perusal of sub-rule (3) discloses that the permission to institute a fresh suit is needed, only when the plaintiff intends to file it "in respect of the subject-matter" of such suit, or part of the claim. The expression "subject-matter" employed in sub- rule (3) is prone to be understood as the property, which is shown in the suit schedule. However, a close scrutiny reveals that the expression refers to the nature of relief than the item of property. For

GAC, J CRP.No.1904 of 2013

instance, the plaintiff in a suit is in enjoyment of an item of immovable property, on the strength of usufruct mortgage. Anticipating or complaining interference by the defendant, he may file suit for perpetual injunction. If for any reason, he does not want to proceed with the suit, he can withdraw it and his right to seek foreclosure of the mortgage is totally independent of, and unconnected with the suit for perpetual injunction. In both the suits, "the subject-matter", in the ordinary parlance, is the mortgaged property. If the expression "subject- matter", occurring in sub-rule (3), is construed as the item of property, than the nature of relief claimed, withdrawal of suit for mortgage would bar the suit for foreclosure also. That is never the purport of CPC, nor the scheme under relevant provisions. The inescapable conclusion is that what is barred under Rule 1 of Order XXIII , CPC is, the filing of a suit for the same relief, on the same cause of action.

In para 10 of the said judgment, it is further held as under :

10. The relief of perpetual injunction presupposes the plaintiff in a suit being in possession of the property and his facing threats from the defendant. In a suit for recovery of possession, on the other

GAC, J CRP.No.1904 of 2013

hand, the very basis is that the plaintiff was dispossessed by the defendant and he prays for a decree of recovery of possession. The suit for these reliefs cannot belong to the same category, much less the reliefs of that nature would form part of the same claim. Consequently, the question of splitting them does not arise. As a matter of fact, they are mutually exclusive.

11. In K.S. Bhoopathy's case (2 supra), it is held by their

Lordships at para 12 of the judgment as under :

"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 the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of 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

GAC, J CRP.No.1904 of 2013

provisions of sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit must 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 permission for

GAC, J CRP.No.1904 of 2013

withdrawal of a suit with leave to file a fresh 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."

12. In the judgment in the case of Sarguja Transport Service

(3 supra), it is held by the Hon'ble Supreme Court in para 7 as

under :

"7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission,

GAC, J CRP.No.1904 of 2013

referred to in sub-rule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII. The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or

GAC, J CRP.No.1904 of 2013

substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court."

13. Further, in the judgment of Hon'ble Supreme Court in the

case of M/s.Upadhyay & Co., (4 supra), it is held in para 13 as

under :

13. The aforesaid ban for filing a fresh suit is based on public policy. This Court has made the said rule of

GAC, J CRP.No.1904 of 2013

public policy applicable to jurisdiction under Article 226 of the Constitution (Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior, 1987 1 SCC 5). The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition.

A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned, he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again. The following observations of E.S. Venkataramiah, J. (as the learned chief Justice then was) are to be quoted here:

"We are of the view that the principle underlying Rule 1 of Order 23 of the code should be extended

GAC, J CRP.No.1904 of 2013

in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art.32 of the constitution since such withdrawal does not amount to res judicata, the remedy under Art.226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.""

14. All the above judgments relied on by the learned counsel for

revision petitioners squarely apply to the facts and circumstances

of the present case, as the earlier suit filed by the plaintiff was for

declaration of title and recovery of possession and the present suit

which he intended to prefer is for declaration of title and for

perpetual injunction. The initial pleadings of the plaintiff disclose

GAC, J CRP.No.1904 of 2013

that he was dispossessed from the suit land and as such, he filed the

suit for declaration of title as well as recovery of possession. The

plaintiff has tried to get the pleadings amended under Order 6 Rule

17 of CPC for declaration of title and perpetual injunction, but the

said I.A. was dismissed as the nature of the suit is being changed.

The present suit which the plaintiff intended to file is for

declaration of title and perpetual injunction which clearly reveals

that the plaintiff is in possession of the property as he prayed for

perpetual injunction. Two contrary pleadings cannot be taken by

the same party i.e. the plaintiff and this Court is of the opinion that

the trial Court ought not to have permitted the plaintiff to file a

fresh suit by withdrawing the present suit with respect to the same

property against the same defendants, as the cause of action itself

will be changed and the nature of suit also change. Suit for

perpetual injunction always presupposes that the party is in

possession of the property. But the plaintiff has filed the suit on

the ground that he was dispossessed from the property.

GAC, J CRP.No.1904 of 2013

15. Therefore, the Civil Revision Petition is allowed. The

impugned order dated 30.01.2013 in I.A.No.1358 of 2012 in

O.S.No.2031 of 2006 on the file of I-Additional Senior Civil

Judge, Ranga Reddy, is set aside. Consequently, O.S.No.2031 of

2006 is restored. The trial Court is directed to dispose of the said

suit within Six months from the date of receipt of a copy of this

order, as the suit is of the year 2006, by giving reasonable

opportunity to both the parties. Both the parties shall co-operate

with the trial Court for speedy disposal of the suit. No order as to

costs.

16. Pending miscellaneous applications, if any, shall stand

closed.

_________________________________ G. ANUPAMA CHAKRAVARTHY, J Date: 23.06.2022

N.B:

L.R. copy be marked.

(b/o) ajr