IMPORTANT POINT
Permission to withdraw a suit with liberty to file a fresh suit requires sufficient grounds or a formal defect; mere change in circumstances does not suffice.

ORDER :

1. This Civil Revision Petition (CRP) is filed against the order dated 04.12.2023 in I.A. No. 853 of 2023 in O.S. No. 56 of 2022 on the file of the III Additional Sessions Judge, Sanga Reddy.

2. The petitioner is the defendant No. 1 in the suit filed by respondent No. 1 herein. The suit was filed for permanent injunction against the defendants therein who are 8 in number. The suit was filed on 24.03.2022 and defendant No. 1 has filed his written statement on 08.06.2022. The other defendants, i.e. defendants 2 to 8 also filed their written statement collectively on 08.06.2022. In the written statement, defendant No. 1 has taken the objection about the title as well as possession of the plaintiff over the suit schedule property. Along with the suit, the plaintiff had filed I.A. No. 161 of 2022 for interim injunction. Defendant No. 1 had filed his counter to the I.A. also raising objections with regard to the title and the possession over the suit schedule property and the boundaries mentioned of the suit schedule property. Respondents 2 to 8 have also filed their counter affidavit and it is thereafter and after hearing all the parties that the petition for interim injunction was dismissed vide orders dated 29.08.2022.

3. Thereafter, the plaintiff has filed I.A. No. 9 of 2023 on 04.01.2023 seeking permission to withdraw the suit in O.S. No. 56 of 2022 reserving its right to file a separate suit seeking declaration of title over the suit schedule property and permanent injunction. Defendant No. 1 filed his counter affidavit submitting that the plaintiff did not have any title to the property and therefore, it cannot file any suit for title and possession and that such a suit would be barred by limitation and further, that the plaintiff is abusing the process of Court by indulging in frivolous litigation and is compelling the defendants to incur huge amount towards litigation expenses. It was submitted that the plaintiff is intending to withdraw the suit after the defendants have filed their counter affidavit and have revealed their defence and therefore, though the plaintiff can be allowed to withdraw the suit, no liberty should be granted to the plaintiff to file a fresh suit based on the same cause of action. After hearing both the parties, vide orders dated 06.03.2023, the petition filed by the plaintiff for withdrawal of the suit with liberty to file a fresh suit was dismissed by observing that the plaintiff is having opportunity of amending the existing plaint seeking the relief of declaration of title and it cannot be said that there is any formal defect in the existing plaint entailing dismissal of the suit and therefore, the plaintiff cannot be permitted to withdraw the suit with liberty to file fresh suit on the same cause of action. It was observed that the plaintiff could not specify the formal defect which is likely to lead to dismissal of the suit nor were any other sufficient grounds made out by it for permitting it to institute a fresh suit in respect of the same subject matter, particularly when it is having opportunity of seeking amendment of the existing plaint. The Court has also taken note of the fact that I.A. No. 161 of 2022 in O.S. No. 56 of 2022 seeking interim injunction against the defendants over the suit schedule property was dismissed by the Court on 28.09.2022 and the appeal filed by the plaintiff before the High Court for the State of Telangana is still pending and during the pendency of such an appeal, the plaintiff is seeking withdrawal of the said suit. Thus, leave under Order 23 Rule 1(3) of CPC was not granted. C.M.A. No. 596 of 2022 filed against the order in I.A. No. 161 of 2022 was also withdrawn by the plaintiff vide judgment dated 01.03.2024.

4. Thereafter, on 12.09.2023, the plaintiff has filed I.A. No. 853 of 2023 in O.S. No. 56 of 2022 seeking permission to withdraw the suit and file fresh suit for declaration of title and possession stating that while passing orders in I.A. No. 161