THE HON’BLE JUSTICE B.R.MADHUSUDHAN RAO

J U D G M E N T

1. This Civil Revision Petition is filed aggrieved by the order in IA.No.299 of 2024, dated 12.11.2024 in OS.No.57 of 2015 passed by learned Senior Civil Judge at Narayanpet.

2. The above said application is filed by the petitioners/plaintiffs under Order XXIII Rule 1(1) of Civil Procedure Code (for short C.P.C.) r/w Rule 28 of Civil Rules of Practice to grant leave to them to abandon the relief of recovery of possession from prayer No.1 of the main suit and to bring consequential amendments in the pleadings.

2.2. The consequential amendments are under:

In the plaint paragraph No.9 of the plaint the valuation of the subject matter is to be noted as ½ of the value comes to Rs.4,10,920/- upon which court fee comes to Rs.7,626/- as per Sec.24 (b) of T.S.C.F & S.V.Act., which is proper and sufficient.

In the first prayer of the plaint the prayer No. i) is to be amended as Decree the suit of the plaintiffs for declaration of title and consequential of relief of injunction over the suit house.

3. Learned Trial Court has dismissed the said application.

4. Petitioner No.4 who is plaintiff No.4 in the suit filed his affidavit on his behalf and on behalf of other plaintiffs and contended that they filed suit for declaration of title and recovery of possession and in the meanwhile mediation was held on 18.01.2018, out of such mediation respondents/defendants handed over the possession to that effect and they filed photographs which were marked as Exhibits. As they got possession of the suit property, there is no need to seek relief of recovery of possession and prayed to abandon the relief of recovery of possession of the suit house from prayer No.1. It is further stated in the affidavit that continuing the relief of recovery of possession will remain defective and thereby, they are compelled to abandon the part of the claim.

5. Respondent Nos.1 to 4 have filed their counter and contended that there was no mediation on 18.01.2018. Respondent No.3/Defendant No.3 has filed suit for perpetual injunction against the petitioners in OS.No.9 of 2018 restraining them from interfering in their possession. Respondent No.3 has filed application for grant of temporary injunction vide IA.No.71 of 2018, the same was allowed on contest on 16.10.2018 holding that respondent No.3 herein, who is the plaintiff in OS.No.9 of 2018 is in possession of the suit house. Petitioners have challenged the same vide CMA No.3 of 2018 on the file of the VII Additional District Judge at Mahbubnagar, and the same was transferred to Principal District Judge at Narayanpet, renumbered as CMA No.14 of 2018 which came to be dismissed on 17.03.2023.

6. Learned counsel for the petitioners submits that the Trial Court failed to exercise the jurisdiction and erroneously dismissed the application seeking to abandon the relief of recovery of possession from prayer No.1 in the suit, claim cannot be rejected as the petitioners/plaintiffs have got liberty with regard to the claims made by them in the suit in pursuance of the mediation held on 18.01.2018. Counsel further submits that the Trial Court ought to have seen that PW.2 in his deposition dated 20.06.2023 has stated about the mediation taken place on 18.01.2018 and delivery of possession by the defendants. PW.2 was also cross-examined to that effect and the said fact was ignored by the Trial Court. In support of his contention, he relied on a decision in Anil Kumar Singh Vs. Vijay Pal Singh and others, (2018) 12 SCC 584

7. Learned counsel for the respondent Nos.1 to 4 contended that the Trial Court has rightly dismissed the application filed by the petitioners to abandon part of the claim by giving sufficient reasons, no interference is called for and relied on a decision in V. Hanya Naik and Others Vs. M. Krishna Reddy and Others, 2009 (6) ALD 429

8. Order XXIII Rule 1 of Civil Procedure Code which is relevant to decide the question reads as under:

Order XXIII Rule 1 of CPC provides