withdraw of suit = it cannot be held that sufficient grounds have not existed for him to file a fresh suit after withdrawing the present suit, as earlier suit was filed only for an injunction simplicitor, while the proposed suit is for grant of multiple reliefs. Even if the observation of the Court below that the mosque was demolished and a foundation was laid at the time of filing the suit was correct, that by itself would not constitute a ground to reject the request of the petitioner to file a comprehensive suit by withdrawing the present suit.

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THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY 
Civil Revision Petition No.327 of 2011

15-04-2011 

Mohammad Gaffur 

Uppada Madayya and another 

Counsel for the Petitioner: Sri K.Manik PrabhuCounsel for respondents:Sri P.Ponna Rao for Sri K.S.Murthy:ORDER: 
 This civil revision petition arises out of order, dated 30.12.2010, in
I.A.No.172 of 2010 in O.S.No.9 of 2005 on the file of the learned Junior Civil
Judge, Ichapuram. 
The petitioner is the plaintiff in O.S.No.9 of 2005, which was filed for
permanent injunction restraining the respondents from interfering with his
possession of the suit schedule property. During the pendency of the suit, he
filed I.A.No.190 of 2009 seeking permission to amend the plaint for adding the
reliefs of mandatory injunction, directing the respondents to remove the
permanent structures constructed over the suit schedule property and recovery of
possession. The said IA was dismissed on 28.06.2010. Thereafter, the
petitioner filed the present application i.e., I.A.No.172 of 2010, seeking
permission to withdraw the suit with liberty to him to file a comprehensive suit
for declaration of title, injunction and recovery of possession. The said IA
having been dismissed, he filed the present civil revision petition.
I have heard Sri K.Manik Prabhu, learned counsel for the petitioner, and Sri
P.Ponna Rao, learned counsel representing the respondents. 
In the order under revision, the Court below has observed that the averment of
the petitioner that the respondents have raised constructions during the
pendency of the suit is incorrect, in view of his oral testimony given as PW.1
to the effect that the respondents have occupied the mosque place and demolished
some part of the mosque and laid foundation, that thereafter the suit was filed
and that at the time of filing injunction petition, house was constructed at the
place where the mosque was located and the doors and windows were not fixed and 
flooring was not laid. The Court below referred to Order XXIII Rule 1 of CPC
and held that unless there is a formal defect in the suit, permission for its
withdrawal with liberty to file a fresh suit cannot be granted.
In my opinion, the Court below has not properly considered the application from
its true perspective. When the petitioner made his application for amendment of
the suit, the same was dismissed obviously on the ground that the proposed
amendment would completely change the nature of the suit. Having thus
disallowed the petitioner to claim comprehensive relief by way of an amendment,
it would be wholly unjust and iniquitous to deny permission to him to withdraw
the suit with liberty to file a comprehensive suit. The Court below has not
considered one of the two grounds on which a suit can be permitted to be
withdrawn with liberty to institute a fresh suit. It has merely referred to
sub-clause (a) of clause (3) of Order XXIII Rule 1, while omitting to consider
sub-clause (b), which pertains to existence of sufficient grounds for allowing
the plaintiff to institute a fresh suit for the subject matter of a suit or part
of a claim.
From the facts pleaded by the petitioner, it cannot be held that sufficient
grounds have not existed for him to file a fresh suit after withdrawing the
present suit, as earlier suit was filed only for an injunction simplicitor,
while the proposed suit is for grant of multiple reliefs. Even if the
observation of the Court below that the mosque was demolished and a foundation
was laid at the time of filing the suit was correct, that by itself would not
constitute a ground to reject the request of the petitioner to file a
comprehensive suit by withdrawing the present suit.
For the above-mentioned reasons, the order under revision petition cannot be
sustained and the same is accordingly set aside. Since filing of fresh suit
would result in causing additional expenditure to the respondents, apart from
consumption of further time in litigation, it would be appropriate that the
petitioner reasonably compensates the respondents in this regard. Accordingly,
the civil revision petition is allowed on condition of the petitioner paying to
the respondents-defendants Rs.1,500/- (Rupees one thousand five hundred only)
each towards costs. Subject to payment of the costs within one month,
I.A.No.172 of 2010 is allowed.
As a sequel to disposal of the civil revision petition, the interim order, dated
04.03.2011, granted by this Court, shall stand vacated and C.R.P.M.P.No.462 of
2011 is disposed of as infructuous.