A court can only grant permission to withdraw a suit with leave to file a fresh suit if it is satisfied that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit.

ORDER :

The petitioners herein had filed O.S.No.20 of 2007 before the Principal District Judge, Vizianagaram against the respondents herein seeking recovery of possession of the plaint schedule property and for permanent injunction restraining the respondents from interfering with the affairs of the 1st petitioner-Trust. Thereafter, an application was filed for amending the plaint by way of I.A.No.2233 of 2012, which was allowed on 07.03.2013. The petitioners again approached the trial Court by way of I.A.No.1752 of 2014 for further amendment of the plaint. This application to amend the prayer in the plaint as well as certain pleadings in the plaint was dismissed on 04.12.2014. Aggrieved by the same, the petitioners had approached the erstwhile High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh by way of C.R.P.No.1700 of 2015, which was also dismissed on 31.12.2018. The matter was then carried to the Hon’ble Supreme Court of India by way of Special Leave to Appeal (c) No.7152 of 2019, which came to be dismissed on 25.03.2019.

2. After this, the petitioners again moved I.A.No.590 of 2019 under the provisions of Order XXIII Rule 1(3) read with Section 151 C.P.C., for permission to withdraw the suit with liberty to file a fresh suit in the interest of justice. This application was dismissed on 25.09.2019. The trial Court took the view that the requirement of Order XXIII Rule 1(3) satisfying the grounds on which such permission is sought, had not been made out. Aggrieved by the said order of dismissal, the present revision petition has been filed by the petitioners.

3. Heard Sri G.V.S. Kishore Kumar, learned counsel appearing for the petitioners; Sri V.V. Ravi Prasad, learned counsel appearing for respondents 2 to 4, 8 and 10 and Sri E.V.V.S. Ravi Kumar, learned counsel appearing for respondents 6 and 7.

4. Sri G.V.S. Kishore Kumar, learned counsel appearing for the petitioners assails the order under revision on the ground that the application was not considered in the right perspective. It is his case that all the facts relating to the suit and various developments in the suit are already before the trial Court and as such the trial Court ought to have gone into the crux of the matter without insisting on the formality of pleadings. He further submits that in view of the refusal of the trial Curt, to amend the pleadings, as sought in I.A.No.1752 of 2014, it is necessary to withdraw the suit to ensure that all the essential pleadings and prayers are raised by way of a fresh suit. He would also submit that the trial Court dismissed the application under revision on an erroneous ground of limitation barring a fresh suit. The learned counsel would point to Section 10 of the Limitation Act, which stipulates that there is no limitation as far as the Trust properties are concerned. Sri G.V.S. Kishore Kumar would also rely upon the judgment of the erstwhile High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh reported in Telugu Chinna Thirupathaiah vs. Boya Nadipi, 2013 (4) ALD 814.

5. Sri V.V. Ravi Prasad, learned counsel appearing for the respondents would submit that the affidavit filed in support of the application by the petitioners, does not make out any case under Order XXIII Rule 1(3) and in the absence of any pleadings the trial Court had dismissed the application. In the circumstances, he would submit that nothing further remains in the revision petition. The learned counsel would also rely upon the judgments in K.S. Bhoopathy and Ors. vs. Kokila and Ors., (2000) 5 SCC 458; G. Achanna vs. P. Pratap Reddy, 2007 (6) ALT 635; and Soma Raju vs. Samanthu Sivaji Ganesh and Anr., 2008 (6) ALT 215 and an unreported judgment of the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh dated 21.12.2018 in C.R.P.No.1700 of 2015. The learned counsel would also seek to distinguish the judgment cited by the