Andhra HC (Pre-Telangana)
K. Ravindra Kumar And Another vs Suraj Bhan, Died Per L.Rs. Omprakash And ... on 21 August, 2014
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY
CIVIL REVISION PETITION No.3518 of 2013
21-08-2014
K. Ravindra Kumar and another.. Petitioners
Suraj Bhan, died per L.Rs. Omprakash and others... Respondents
Counsel for the petitioners: Mr. Keshav Hulsurkar
Counsel for the respondents: Mr. M.R.K. Chakravarthy
For Mr. M.V. Durga Prasad
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THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY
CIVIL REVISION PETITION No.3518 of 2013
DATED: 21.08.2014
This Court made the following:
ORDER:
This civil revision petition arises out of order dated 05.02.2013 in I.A.No.842 of 2008 (amended as I.A.No.842 of 2012) in O.S.No.256 of 2008 on the file of the learned Additional Junior Civil Judge, Cyberabad, at Kukatpally.
The petitioners filed the above-mentioned suit for perpetual injunction against one Suraj Bhan. Later, on the death of the said Suraj Bhan, respondents 2 to 6 were brought on record as his legal representatives. After the commencement of trial, the petitioners have filed the above-mentioned I.A. under Order XXIII Rule 1 read with Section 151 of C.P.C. for permission to withdraw the suit with liberty to file a suit for comprehensive reliefs of declaration of title and recovery of possession of the suit schedule property. This application was firmly resisted by the respondents. By the order under revision, the lower Court has permitted the petitioners to withdraw the suit, without granting leave to them to file a fresh suit, by purportedly allowing the application filed by the petitioners in part.
Under clause (3) of Rule 1 of Order XXIII of C.P.C., where the Court is satisfied that a suit must fail by reason of some formal defect or 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, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
Mr. Keshav Hulsurkar, learned counsel for the petitioners, while stating that his clients do not intend to question the order of the lower Court to the extent of holding that they are not entitled to leave for filing a fresh suit, has, however, submitted that if the Court was not satisfied that such leave can be granted to the petitioners, in all fairness, it ought to have dismissed the application in toto instead of partly allowing the application, which had the result of dismissing the suit itself.
I find force in this submission of the learned counsel for the petitioners. The petitioners have filed the application for withdrawal of the suit with the hope that the lower Court would grant them permission to file a fresh suit. If the Court is not satisfied that the ingredients of Rule 1(3) of Order XXIII are satisfied, it can only dismiss the I.A. in toto. It would be a grave travesty of justice if the Court, while refusing to grant leave to file a fresh suit, purports to allow the application in part permitting the plaintiff to withdraw the suit, which, as rightly submitted by the learned counsel for the petitioners, has the result of dismissing the suit itself. This Court finds that the approach of the lower Court is opposed to the concept of fair play inasmuch as the petitioners were put to the double disadvantage of denial of leave to file a fresh suit as well as pursuing the existing one.
Mr. M.R.K. Chakravarthy, learned counsel representing Mr. M.V. Durga Prasad, learned counsel for the respondents, raised a serious objection as to the maintainability of the civil revision petition under Article 227 of the Constitution of India. He has, however, not disputed that a revision under Section 115 C.P.C. is maintainable.
Since the order of the lower Court is amenable to this Courts jurisdiction, it hardly makes any difference whether the revision is filed under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India or under Section 115 C.P.C. Indeed, the existence of Courts is intended to secure the ends of justice and in pursuit of this goal, the Courts must surmount the procedural hurdles if they stand in their way. After all, procedure is the handmaid of the Master of justice.
For the above mentioned reasons, the order of the lower Court is set aside. I.A.No.842 of 2012 is dismissed and O.S.No.256 of 2008 is restored to file. The lower Court is directed to resume the hearing of the suit from the stage where it was stopped and decide the same on merits within four months from the date of receipt of this order.
The civil revision petition is accordingly allowed.
As a sequel to the allowing of the civil revision petition, C.R.P.M.P.No.4703 of 2013 shall stand disposed of as infructuous.
_____________________ C.V. NAGARJUNA REDDY, J 21st August, 2014