Telangana High Court

Porika Nanda vs Silamanthula Kotilingam on 10 January, 2025

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

           CIVIL REVISION PETITION No.2938 OF 2024

ORDER:

This Civil Revision Petition is filed aggrieved by the order

dated 05.07.2024, passed in I.A.No.82 of 2024 in O.S.No.482 of

2022, by the Senior Civil Judge, Mulugu (for short, 'the trial

Court').

2. Heard Sri S.Chandrasekhar, learned counsel for the

petitioner and Sri B.Rama Rao, learned counsel for the

respondents.

3. Facts of the case in nutshell are that the petitioner has filed

a suit in O.S.No.482 of 2022 for perpetual injunction against the

respondents herein in respect of the land admeasuring Ac.0-15 gts

in Survey No.978, Pathipally village, Mulugu Mandal,

Jayashankar Bhupalapally District (for short 'suit property'); that

he has also filed an application for ad-interim injunction and the

same was granted by the trial Court. The petitioner has filed

I.A.No.5 of 2022 before the trial Court for amendment of the plaint

on the ground that his counsel did not properly mention the

boundaries of suit schedule property. However, the said I.A., was

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dismissed by the trial Court vide order dated 28.06.2023 and

there was no further challenge to the said order.

4. The petitioner has filed another I.A.No.82 of 2024

contending that nature of suit property has been changed and

that the boundaries of suit property as well as defendants'

addresses were not correctly mentioned in the suit; that he has

purchased the suit property in the year 1980 and he was also

issued with title deed; that he had worked as a Government

Teacher at Kondapur and Rayaparthy and that he was forced to

reside at Warangal; that taking advantage of his absence, the

respondents had occupied the suit property. It is further

contended that the petitioner had retired from the service and he

is aged about 80 years and suffering with old age ailments. By

contending thus, he is seeking permission to withdraw the suit

and to file a fresh comprehensive suit.

5. The respondents have filed a counter in the said I.A.No.82 of

2024, denying the averments of the petitioner and stated that the

petitioner had already sold the suit property to them by executing

unregistered sale deeds dated 18.05.1985 and 06.06.2001; that

respondent No.1 has constructed residential house in the suit

schedule property under Indiramma Pathakam in the name of his

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daughter and also established a business of Welding Machine and

Flour mill and that at no point of time the petitioner was in

possession of the suit schedule property. Further, it was

contended that earlier the application filed by the petitioner for

amendment of plaint was dismissed by the trial Court on

28.06.2023 on the ground that the petitioner was not able to

identify the location of the suit property; that without disclosing

the nature of the suit intending to be filed, the petitioner filed the

application i.e., I.A.No.82 of 2024 and therefore, said application

is liable to be dismissed.

6. The trial Court, having considered the application filed by

the petitioner as well as the counter filed by the respondents

dismissed I.A.No.82 of 2024 vide order dated 05.07.2024 with an

observation that earlier, the petitioner filed an application for

amendment of suit property and the same was dismissed on

merits and again the petitioner came up with another application

seeking permission to withdraw the suit and file fresh suit and

that one of the ground mentioned in the application is same i.e.,

the boundaries of suit property were wrongly mentioned in the

suit, therefore, the petitioner cannot be permitted to withdraw the

suit as it would be in conflict with the order passed in I.A.No.5 of

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2022. Aggrieved by the said order dated 05.07.2024, in I.A.No.82

of 2024, the petitioner has filed the present Civil Revision Petition.

7. Learned counsel for the petitioner has contended that

initially, the suit was filed for perpetual injunction and an ad

interim injunction was granted by the Trial Court. However, owing

to his old age ailments, the petitioner was hospitalized; he is

retired Government Teacher and he was residing at Warangal and

therefore, the petitioner was away from the subject property. It is

further contended that earlier the petitioner has filed I.A.No.5 of

2022 for amendment of plaint as the boundaries of the suit

property were not properly mentioned, but the same was

dismissed, however, due to change in circumstances, an

application was filed by the petitioner seeking permission to

withdraw the suit and to file a comprehensive suit with

appropriate reliefs.

8. The learned counsel for the petitioner has relied upon

following judgments of the erstwhile High Court of Andhra

Pradesh:

          (i)   Mohammad      Gaffur         Vs.   Uppada    Madayya        and

another 1



    2011 (4) ALT 245

                                                                     LNA, J

          (ii)    Pillakathuku   Subbarathnam      and   another       Vs.

Executive Officer, Polathala Malleswaraswamy Temple and

others 2 and

(iii) Lakshmanna Vs. Chinna Govindappagari

Chendrayudu 3.

9. Per contra, learned counsel for the respondents had

contended that earlier the petitioner has filed I.A.No.5 of 2022 for

amendment of the plaint and the same was dismissed by the trial

Court on merits vide order dated 28.06.2023. The petitioner did

not challenge the said order and thus, the same has become final.

One of the grounds for filing present application is same as that of

earlier application, therefore, the same is not maintainable and

the trial Court, by taking into consideration the facts and

circumstances of the case, has rightly dismissed the application.

Consideration:

10. Perusal of the record would show that initially the petitioner

has filed a suit for perpetual injunction and obtained interim

injunction. Thereafter, I.A.No.5 of 2022 was filed for amendment

of plaint specifically for amendment of boundaries of the suit

schedule property, however, the said application was dismissed by

2005 (4) ALT 423

1998 (2) ALT 263

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the trial Court vide order dated 28.06.2023. Further, it is the case

of the petitioner that he is Government Teacher, residing at

Warangal, he is aged about 80 years and suffering with old age

ailments and taking advantage of his absence, the respondents

had occupied the suit property. Therefore, in view of change in

circumstances and also non mentioning of correct boundaries of

the suit schedule property, the petitioner filed I.A.No.82 of 2024

seeking permission to withdraw the suit and to file a fresh

comprehensive suit. However, the trial Court dismissed the I.A.

vide order dated 05.07.2024 only on the ground that earlier

application filed by the petitioner for amendment of boundaries of

the schedule property was dismissed on merits and the

subsequent application is in conflict with the earlier order.

11. A perusal of the counter filed by respondent No.1 would

indicate that subject property is no more agricultural land and in

fact, it has become part of residential area of village and

respondent No.1 has also constructed a house under Indiramma

Pathakam. It is relevant to note that the petitioner initially filed

suit for injunction and in view of the change in circumstances, he

intended to file fresh comprehensive suit. Earlier, the petitioner

has filed an application i.e., I.A.No.5 of 2022 for amendment of

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plaint particularly for mentioning correct boundaries of the

subject property. However, the said application was dismissed by

the trial Court vide order dated 28.06.2023.

12. In Mohammad Gaffur's case supra, the plaintiff initially

filed suit for permanent injunction and thereafter sought

permission to file comprehensive suit, wherein, the learned Single

Judge of the erstwhile Andhra Pradesh High Court, has granted

permission to the plaintiff to withdraw the suit for injunction and

to file comprehensive suit, by observing as under:

'5. In my opinion, the Court below has not properly considered the application from its true perspective. When the petitioner made his application for amendment of the suit, the same was dismissed obviously on the ground that the proposed amendment would completely change the nature of the suit. Having thus disallowed the petitioner to claim comprehensive relief by way of an amendment, it would be wholly unjust and iniquitous to deny permission to him to withdraw the suit with liberty to file a comprehensive suit. The Court below has not considered one of the two grounds on which a suit can be permitted to be withdrawn with liberty to institute a fresh suit. It has merely referred to sub-clause (a) of clause (3) of Order XXIII Rule 1, while omitting to consider sub-clause (b), which pertains to existence of sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.'

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13. In Pillakathuku Subbarathnam's case supra, the plaintiff

sought permission to withdraw the suit and to file fresh suit as

there are certain serious defects in the pleading and also relief

prayed for. Learned single Judge of the erstwhile Andhra Pradesh

High Court, by referring to Order XXIII Rule 3(b) of CPC has

allowed the Revision and permitted the plaintiff to withdraw the

suit with a liberty to file fresh suit.

14. The facts of above referred cases squarely apply to the

present case. It is relevant to note that earlier application i.e.,

I.A.No.5 of 2022 was filed specifically for amendment of

boundaries of the suit property. However, the present application

i.e., I.A.No.82 of 2024 is filed seeking permission to file fresh suit