Telangana High Court

Smt Rabia vs Smt Syed Haseena Begum on 28 March, 2025

         THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO

                          CRP.NO.3841 OF 2024


JUDGMENT

1. This Civil Revision Petition is filed aggrieved by the order in

IA.No.299 of 2024, dated 12.11.2024 in OS.No.57 of 2015 passed by

learned Senior Civil Judge at Narayanpet.

2. The above said application is filed by the petitioners/plaintiffs

under Order XXIII Rule 1(1) of Civil Procedure Code (for short C.P.C.)

r/w Rule 28 of Civil Rules of Practice to grant leave to them to abandon

the relief of recovery of possession from prayer No.1 of the main suit

and to bring consequential amendments in the pleadings.

2.2. The consequential amendments are under:

In the plaint paragraph No.9 of the plaint the valuation of the subject matter is to be noted as ½ of the value comes to Rs.4,10,920/- upon which court fee comes to Rs.7,626/- as per Sec.24 (b) of T.S.C.F & S.V.Act., which is proper and sufficient.

In the first prayer of the plaint the prayer No. i) is to be amended as Decree the suit of the plaintiffs for declaration of title and consequential of relief of injunction over the suit house.

3. Learned Trial Court has dismissed the said application.

4. Petitioner No.4 who is plaintiff No.4 in the suit filed his affidavit

on his behalf and on behalf of other plaintiffs and contended that they

filed suit for declaration of title and recovery of possession and in the 2 BRMR,J CRP_3841_2024

meanwhile mediation was held on 18.01.2018, out of such mediation

respondents/defendants handed over the possession to that effect and

they filed photographs which were marked as Exhibits. As they got

possession of the suit property, there is no need to seek relief of

recovery of possession and prayed to abandon the relief of recovery of

possession of the suit house from prayer No.1. It is further stated in

the affidavit that continuing the relief of recovery of possession will

remain defective and thereby, they are compelled to abandon the part

of the claim.

5. Respondent Nos.1 to 4 have filed their counter and contended

that there was no mediation on 18.01.2018. Respondent

No.3/Defendant No.3 has filed suit for perpetual injunction against the

petitioners in OS.No.9 of 2018 restraining them from interfering in

their possession. Respondent No.3 has filed application for grant of

temporary injunction vide IA.No.71 of 2018, the same was allowed on

contest on 16.10.2018 holding that respondent No.3 herein, who is the

plaintiff in OS.No.9 of 2018 is in possession of the suit house.

Petitioners have challenged the same vide CMA No.3 of 2018 on the

file of the VII Additional District Judge at Mahbubnagar, and the same

was transferred to Principal District Judge at Narayanpet, renumbered

as CMA No.14 of 2018 which came to be dismissed on 17.03.2023.

6. Learned counsel for the petitioners submits that the Trial Court

failed to exercise the jurisdiction and erroneously dismissed the 3 BRMR,J CRP_3841_2024

application seeking to abandon the relief of recovery of possession

from prayer No.1 in the suit, claim cannot be rejected as the

petitioners/plaintiffs have got liberty with regard to the claims made by

them in the suit in pursuance of the mediation held on 18.01.2018.

Counsel further submits that the Trial Court ought to have seen that

PW.2 in his deposition dated 20.06.2023 has stated about the

mediation taken place on 18.01.2018 and delivery of possession by the

defendants. PW.2 was also cross-examined to that effect and the said

fact was ignored by the Trial Court. In support of his contention, he

relied on a decision in Anil Kumar Singh Vs. Vijay Pal Singh and

others 1.

7. Learned counsel for the respondent Nos.1 to 4 contended that

the Trial Court has rightly dismissed the application filed by the

petitioners to abandon part of the claim by giving sufficient reasons,

no interference is called for and relied on a decision in V. Hanya Naik

and Others Vs. M. Krishna Reddy and Others 2.

8. Order XXIII Rule 1 of Civil Procedure Code which is relevant to

decide the question reads as under:

Order XXIII Rule 1 of CPC provides :

(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:

(2018) 12 SCC 584

2009 (6) ALD 429 4 BRMR,J CRP_3841_2024

Provided that where the plaintiff is a minor or other person to whom the provisions 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 persons.

(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 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.

9. Petitioners who are the plaintiffs in the suit have filed OS.No.57

of 2015 against the respondent Nos.1 to 4/defendants for declaration

of title and recovery of possession by evicting the defendants from the

Suit House i.e., H.No.3-2-102 situated at Pathy Bazar locality of

Narayanpet. Respondent Nos.1 to 4 who are the defendants in the suit 5 BRMR,J CRP_3841_2024

have filed their written statement contending that defendant No.3 is in

possession of suit schedule property.

10. Issues are framed in the suit on 22.08.2017 and trial was

commenced on 23.11.2022, PW.1 was also examined to that effect.

Plaintiff No.5 is examined as PW.2 in the suit, wherein, he stated that

on 18.01.2018 there was mediation, as per the outcome of the

mediation, defendants have handed over the possession of the

suit house. PW.2 was also cross-examined by the

respondent's/defendant's counsel.

11. On reading of Order XXIII Rule 1 of CPC, goes 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.

12. The Supreme Court in Anil Kumar Singh case (supra1) observed

at Para No.23 which reads as under :

23. In our considered opinion, when the plaintiff files an application under Order 23 Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is always at liberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the costs to him by the plaintiff as provided in sub-rule (4).

13. The decisions cited by respondent's counsel in V. Hanya Naik

and Others (supra) is not applicable to the case on hand in view of the

fact that in the above said decision, suit was filed seeking declaration

that they are surviving LR's of Late V.Rashya Naik, no one was 6 BRMR,J CRP_3841_2024

impleaded as defendant and it was filed against all concerned. The

facts in the above decision are completely different with the facts on

hand.

14.1. In view of the ratio laid down by the Supreme Court in Anil

Kumar Singh case (supra1), petitioners/plaintiffs are the masters of

their case, they can abandon their part of their claim at any time after

the institution of the suit. The finding of the Trial Court that the

question of who is in physical possession becomes a matter of trial