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

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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

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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.

(2018) 12 SCC 584

(1975) 1 SCC 405

AIR 2003 Bombay 238

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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

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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.

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(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.