THE HONOURABLE SMT. JUSTICE RENUKA YARA C.R.P.No.2481 of 2024

ORDER:

Heard Sri J.Srinivas, learned counsel for the petitioners and Sri M.S.Chandresh, learned counsel for the respondent.

2. This Civil Revision Petition is filed aggrieved by the order dated 18.07.2024 passed in I.A.No.566 of 2024 in O.S.No.890 of 2022(Old O.S.No.965 of 2003) by the learned II Additional Senior Civil Judge, Medchal-Malkajgiri District at Kushaiguda.

3. The revision petitioners have filed the said suit seeking perpetual injunction with respect to the suit schedule property consisting of Plot No.17- C with Municipal No.4-123/6A in Survey No.64, admeasuring 630 square yards, situated at Swaroop Nagar, Uppal Kalan, Uppal Municipality, Ranga Reddy District. Thereafter, amendments were carried in the prayer by seeking relief of declaration that the revision petitioner No.2 is the owner of the suit schedule property and to declare the sale deed document No.1662 of 1967 as null and void. The matter came up for evidence of the revision petitioners in the year 2014, but the same was closed as the evidence was not recorded. Aggrieved by the same, earlier, civil revision petition was preferred and the same was dismissed. Therefore, there is no evidence of the revision petitioners on record to support the suit claim. After closing of the evidence of the revision petitioners, the respondent has led the evidence and currently, the suit is at the stage of arguments.

4. At that juncture, I.A.No.566 of 2024 was filed under Order 23 Rule 3 of C.P.C to withdraw the suit with permission to file a fresh suit. The respondent opposed the petition and the I.A. came to be dismissed vide impugned order dated 18.07.2024. Aggrieved by the same, the present civil revision petition is preferred.

5. In grounds of revision, it is pleaded that a petition to withdraw can be filed at any stage of the proceedings in a suit and that there is a formal defect as there is no evidence of the petitioners-plaintiffs and therefore, the revision petitioners intend to withdraw the suit for filing a fresh suit.

6. In support of his claim, learned counsel for the petitioners relied upon judgment of the Hon’ble Supreme Court in K.S.Bhoopathy and others vs. Kokila and others1, wherein it was held as follows:-

“The present Rule which was introduced in place of the old Rule 1 by the Amendment Act of 1976 makes a distinction between absolute withdrawal which is termed as ‘abandonment’ and withdrawal with the permission of the Court. This clear distinction is maintained throughout in the substituted Rule by making appropriate changes in the wording of various sub-rules of Rule 1.

The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the Court; in that case he will be precluded from suing again on the same cause of action. Neither

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the plaintiff can abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3) be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11, C.P.C.

The provision in Order XXIII, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule(1).”

7. Further reliance is placed on the judgment of the Hon’ble Supreme Court in V. Rajendran and Anr. vs Annasamy Pandian (D) Thr. Lrs. Karthyayani Natchiar2 wherein it is held as follows:

“As per Order XXIII Rule 1(3) CPC, s