Withdrawal of a suit at the appellate stage is discretionary and cannot be used to evade adverse findings from the trial court.

ORDER :

PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 05.08.2022 in I.A.No.17 of 2022 in A.S.No.23 of 2009 on the file of the Additional Sub-Court, Thanjavur and allow this civil revision petition.

This Civil Revision Petition is filed against the order of the Additional Subordinate Judge, Thanjavur, made in I.A.No.17 of 2022 in A.S.No.23 of 2009. In the said application, the petitioner/appellant prayed for leave to withdraw the original suit itself with the liberty to file a fresh suit with the declaratory relief. The same was dismissed.

2. The case of the plaintiff is that the suit survey numbers originally belonged to one V.Vadivelu and V.Kandasamy and their sisters Sundarambal and Magilambal. The aforesaid Vadivelu and one Nambi Murugesan as the power agent of the said Kadasamy, Sundarambal and Magilambal, through a registered Power of Attorney dated 09.12.1987, sold the property to one V.K.Ramasamy under a registered sale-deed dated 28.02.1988. In turn, the said Ramasamy sold the suit property to the plaintiff under a registered sale deed dated 20.05.2004. The defendant, who is the adjacent owner compelled the plaintiff to sell the suit property to him and when the plaintiff refused, the defendant and his men attempted to trespass into the property therefore, the plaintiff filed the present suit for a permanent injunction restraining the defendant and his men from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.

3. The defendant resisted the suit by filing a written statement. It is pleaded that the suit property does not belong to V.Vadivelu and others but, it originally belonged to one Thonthiveeran and after his demise, the properties were succeeded by his sons Aandi and Valaran. The suit property was thereafter allotted to Aandi and after his lifetime, it was succeeded by his son Mookan. The said Mookan sold the property to one Ammakannu and Shanmugam by way of a registered sale deed dated 22.03.1952. After the death of the said Ammakannu, her husband Shanmugam became the sole owner of the property and he in turn, sold the property to one Kalimuthu, by way of a registered sale deed dated 03.06.1956. The said Kalimuthu died in the year 1974 and the property was succeeded by his son Sadhasivam, the defendant herein and other sons Thangaraj and Saivaraj.

4. Based on the said pleadings, the Trial Court framed two issues.

(i) Whether the plaintiff's possession of the suit property is lawful;

(ii) Whether the plaintiff is entitled to the relief of injunction and to what reliefs

In respect of the first issue, the Trial Court in paragraphs 10 to 15, went into the question of title in detail. The Trial Court found that the plaintiff did not prove how his vendors derived the title of the suit properties. The Trial Court, further said that even the Power of Attorney is not produced before the Court and therefore, the further transaction is also not proved. The Trial Court on the other hand agreed with the title of the defendant and found that the defendant's properties were included by the plaintiff and plotted out. After rendering the above finding, the Trial Court also in paragraph 16 as well as in paragraph 9 held that the plaintiff had omitted to pray for a relief of declaration and non-suited the plaintiff for any relief also on the said ground when it came to the answer of Issue No.2.

5. Aggrieved by the same, the plaintiff has filed the present A.S.No.23 of 2009. Pending the same, now the present application is filed in I.A.No.17 of 2022 for a leave to withdraw the suit. The lower appellate Court refused to grant such leave and dismissed the application, against which, the present Civil Revision Petition is filed.

6. The law relating to withdrawal of the suit can be succinctly stated as follows:-

(i) If the suit is pending, as per Order XXIII Rule 1 of Code of Civil Procedure, 1908, the