Andhra HC (Pre-Telangana)
Telugu Chinna Thirpathaiah vs Boya Nadipi on 18 June, 2013
Equivalent citations: AIRONLINE 2013 AP 67, (2013) 4 ANDHLD 814
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY
C.R.P.No.4297 of 2011
DT.18-06-2013
Telugu Chinna Thirpathaiah...Petitioner
Boya Nadipi... Respondent
^Counsel for the Petitioner:Sri J.Janaki Rami Reddy
!Counsel for the respondent: Sri G.Sravan Kumar
<Gist:
>Head note:
?Cases referred:
THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Civil Revision Petition No.4297 of 2011
The Court made the following:
ORDER:
This civil revision petition is filed against order, dated 06.09.2011, in I.A.No.838 of 2011 in O.S.No.685 of 2008, on the file of the learned Junior Civil Judge, Kurnool.
The petitioner filed the suit for mandatory injunction directing the respondent to remove the door and two windows erected by the latter in AF marked wall in the plaint plan. After completion of the evidence of PWs.1 to 4 and when the case was coming up for further evidence, the petitioner filed I.A.No.838 of 2011 under Order XXIII Rule 1 CPC seeking permission to withdraw the suit with liberty to file a fresh suit. This application having been dismissed by the lower Court, the petitioner filed the present civil revision petition. I have heard Sri J.Janaki Rami Reddy, learned counsel for the petitioner, and Sri G.Sravan Kumar, learned counsel for the respondent. In his affidavit filed in support of the application for permission to withdraw the suit, the petitioner has stated that the respondent has highhandedly erected a door and two windows in AF wall when the petitioner was not in station; that in his plaint, the petitioner pleaded that ABFE wall adjoining his ABCD house is in possession of his predecessors and later himself for a long time and that recently, the Tahsildar, Orvakal assigned this disputed land to the extent of half a cent. The petitioner has therefore pleaded that as he wants to file a suit for declaration of title based on the said assignment, he wants to withdraw the present suit with liberty to file a fresh suit.
In its order, the Court below has observed that except pleading that he was granted an assignment, the petitioner has not filed the alleged patta before the Court and that having raised a plea that the petitioner has purchased ABEF marked site from his vendors, he cannot be permitted to raise a contradictory plea to the effect that he was granted a patta and that when the petitioner claimed that he has title, the question of Tahsildar granting patta does not arise.
In my opinion, the whole reasoning of the Court below is faulty. Under Order XXIII Rule 1 CPC, a suit can be permitted to be withdrawn with liberty to file a fresh suit if any of the two circumstances mentioned in sub-clauses (a) and (b) exists, namely, (1) that a suit must fail by reason of some formal defect or (2) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Whenever an application for permission to withdraw the suit with permission to file a fresh suit is considered by the Court, it shall keep in mind whether the plaintiff has satisfied either of the two conditions referred to in Order XXIII Rule 1(3) (a) and (b) CPC. The Court cannot go into the merits of the plea on which the plaintiff seeks to file a fresh suit or it cannot insist on proving such plea in the present suit itself. It is for the plaintiff to establish his case by adducing relevant evidence in a freshly instituted case. All that the Court needs to be satisfied is that whether the suit suffers from formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit.
The facts pleaded by the petitioner as referred to above would certainly constitute sufficient ground for filing a fresh suit. The petitioner has filed the suit only for mandatory injunction. He intends to file a suit for declaration of title based on the purported assignment. If the assignment was not made in favour of the petitioner, the plaintiff will not succeed in the fresh suit. By merely granting permission for filing a fresh suit, the Court will not be granting any part of the relief which the plaintiff proposed to seek in the fresh suit. Hence, the Court shall not put the plaintiff to prove all the grounds on which he intends to file a fresh suit. The Court below has therefore committed a serious jurisdictional error in rejecting the petitioner's application for the reasons which are not germane.
For the above-mentioned reasons, the order of the lower Court is set aside. I.A.No.838 of 2011 is allowed and O.S.No.685 of 2008 is accordingly dismissed as withdrawn with liberty to the petitioner to file a fresh suit for declaration of title based on the purported assignment.
The civil revision petition is accordingly allowed.
As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.6099 of 2011 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J dated:18-06-2013