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2013 Supreme(AP) 975

High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE M.S. RAMACHANDRA RAO, J.
Dr. M. Srinivas Rao & Another
Versus
Madhura Centre/Tiffin rep. by its owner & Another
CRP. No. 4274 of 2011 & CRP. No. 3033 of 2011
Decided on: 12-11-2013

Advocates Appeared:
For the Petitioners:P. Narsing Rao, Advocate.
For the Respondents:R1 & R2, MVS. Suresh, Advocate.

Headnote:Civil Procedure Code 1908 - Order 23 Rule 1 - No form is necessary to be followed by plaintiff for abandonment of part of suit claim—Plaintiff can always withdraw a suit or abandon a part of his claim in suit unless any right already accrued to the other party in the suit.

Judgment :

1. The petitioner in both these revisions filed under Art.227 of the Constitution of India, is the plaintiff in OS.No.972 of 2006 on the file of XII Junior Civil Judge, City Civil Court, Hyderabad. As the subject matter of both these revisions are inter-related, they are being disposed of by this common order. The parties will be referred to as per their array in CRP.No.4274 of 2011.

2. The subject matter of the above suit is a Mulgi No.17-1-376/352/3, forming part of a House No.17-1-376/352, Santoshnagar Colony, Hyderabad. The plaintiff contended that he is the absolute owner of the property H.No.17-1-376/352 having purchased it under a registered sale deed dt.15.10.1992; that in the eastern side of the said house he constructed three mulgies which were given bye numbers 17-1-376/352/1, 2 and 3; that he let out mulgi No.17-1-376/352/3 (the suit mulgi) to the 1st respondent/1st defendant to run a medical shop and general stores on a monthly rent of Rs.2,000/-; that he instructed his close relative, the 2nd respondent/2nd defendant to collect rents from 1st defendant but the latter having collected the rents, did not pay the same to him and swallowed them; that he intends to demolish the entire premises for constructing his own Nursing Home and therefore, the following reliefs be granted to him :

“(i) to grant a decree of declaration declaring the plaintiff to be absolute owner, entitled to recover possession of suit Mulgi No.17-1-376/352/3 Santoshnagar Colony, in front of Yadagiri theatre, Hyderabad, as shown in the suit schedule;

(ii) directing the Defendant No.1 to quit/vacate and deliver to Plaintiff vacant possession of the suit schedule portion Malgi bearing No.17-1-376/352/3, Santoshnagar Colony, (in front of Yadagiri Theatre), Hyderabad.

(iii) directing the defendant No.1 to pay arrears of rent of Rs.8,000/- from 01.10.2005 to 31.01.2006 to Plaintiff;

(iv) awarding damages/mesne profits to Plaintiff against Defendant No.1 at Rs.5,000/- per month from 01.02.2006 onwards till surrender of possession.

(v) restraining the Defendant No.2 perpetually from interfering with Plaintiff’s peaceful possession and collecting rent of suit schedule portion of property i.e. Mulgi No.17-1-376/352/3, Santoshnagar Colony, Hyderabad;

(vi) awarding the cost of the suit to Plaintiff against defendants;

(vii) grant to Plaintiff such other relief or reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case and in the interest of justice.”

3. The 2nd respondent in CRP.No.4274 of 2011, by name M. Laxmaiah, who is impleaded as 1st respondent in CRP.No.3033 of 2011 is the 2nd defendant in the above suit. He filed OS.No.334 of 2004 before X Addl. Chief Judge, Fast Track Court, City Civil Court, Hyderabad to declare that he is the absolute owner and possessor of the property bearing H.No.17-1-376/352, Santoshnagar, Hyderabad (in which the property H.No.17-1-376/352/3, Santoshnagar, Hyderabad which is the subject matter of OS.No.972 of 2006 is located) and for perpetual injunction restraining his brother by name M. Yellaiah, the petitioner herein, the petitioner’s brother Dr. M. Kishan Rao and mother by name Smt. M. Laxmamma from interfering with his peaceful possession and enjoyment of the plaint schedule property and for costs. This suit was dismissed on 28.10.2010. Aggrieved thereby, he filed CCCA.No.84 of 2011 on the file of this Court and the same is pending.

4. IA.No.401 of 2011 was filed by M. Laxmaiah, the 2nd defendant in OS.No.972 of 2006 under Section 10 of CPC to stay all further proceedings in OS.No.972 of 2006 pending disposal of CCCA.No.84 of 2011 on the file of the High Court. In the said application he contended that the first relief claimed in OS.No.972 of 2006 (i.e., the relief to declare the plaintiff therein as the absolute owner of the suit Mulgi) is inextricably connected with CCCA.No.84 of 2011 wherein he (M. Laxmaiah) has sought relief of declaration of title of the property being H.No.17-1-376/35





















































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