The High Court · 2025

...RESPONDENTS/DEFENDANTS lA NO: 1 OF 2024 Petition unr lt:r Section 151 CPC praying that in the circunrst :nces stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the oper;rtion of the order of the Honble Court of the Pr nc pal Junior Civil Judge- cum- Judir;ial Magistrate of the first Class, at Vikarabad, in . A. No. 501 of 2O23 ia O. S N> 205 of 2005, dated 16- 04- 2024 pendin; rlisposal of the Revision Petition. Counsel for the F etitioner:SRl. R RANGANATHAN Counsel for the F'espondent Nos. 2 to 5: SRl. SINGH THAKUR A[\IOOP The Court made tl e following: ORDER I n HON'BLE SRI JUSTICE LAXMT NARAYANA ALISHETTY CIVIL REVISION PETITION No.23 8oF 2024 ORDER: 'l'he order dated 16.04.2024 in I.A.No501 of 2023 in OS.No.205 of 2005 passed by the Principal Junior Civil Judge, Vikarabad is under challenge in the present Revision Petition.

2. Heard Sri R.Ranganathan, leamed counsel for revision petitioner and Sri A.Ravinder Reddy, leamed senior counsel appearing for Sri Singh Thakur Anoop, learned counsel on record fbr respondent Nos.2 to 5.

3. The revision petitioner is defendant, respondent Nos.1 to 5 herein are plaintiffs and respondent Nos.6 to l0 herein are defendants in the suit before the trial Court. For convenience, hereinafter the parties will be referred to as arrayed in the suit.

4. The facts of the case, in brief, are that the plaintiffs filed a suit in OS.No.205 of 2005 on the file of the Principal Junior Civil Judge, Vikarabad, seeking to declare them as absolute owners of the suit schedule property i.e., Iand admeasuring Acs.2.39 guntas in Sy.No.34lA of Kareempur Village, Bantawaram Mandal, Ranga Reddy District and also for perpetual injunction restraining the "*.defendant from alienating the suit schedule propefty. Aiong with 2 I,NA, J CR P. \'o.13 48 of 2024 the suit. the plaintiff filed an application for interir.. njunction against the c efendant not to alienate the suit schedule rrr.c perty and initially, intr rim injunction was granted vide IA.No.ll of 2005 and thereafter he same was made absolute on l: .02.2006. Subsequentl , defendant No.3 filed an applicatior.r in I \.l,Jo.gl I of 202 1 pral inll the Courl to dismiss the suit by strikinii c ut all the pleadings in t,rto and the said application was allorved b,, the trial aor6 1,ir1r.: o rler dated 08.08.2022 and the plaintiffs uert, directecl to carrv out. uncndment accordingly and to file a neart copy of the plaint. Aggri r.ied by the same, the plaintiff preferred rll{p No.2062 of 2022, hor,'r.ver, the same was dismissed. After disnLisr;a[ of the said CRP, th, :laintiffs filed IA.No.501 of 2023 under ()rt cr XXIII Rule 1(3 ) CI (i seeking to grant leave/permission to * ith draw the suit with J ibr r:y to institute a fresh suit against the c e ler dants on the same caur € of action; that in the said application, it .,,,,a; averred that the suit r,rrs initially filed for declaration of title and rccovery ofpossession tLnd due to typographical error, the earlier cc,unsel on record ha.s al e red the same when the bundle was returne d by the ofllce u,ith x:rtain objections and subsequently. th() riuit was numbered. It v,,as further averred that the plaintifT wl.ro c riginally 3 LNA, J CRP.No.2348 oJ 2024 filed the suit has no educational qualification and therefore, he has no knowledge of the draft prepared by the earlier advocate on record. It was further averred that the plaintiffs are in occupation of the suit schedule property and if the amendments are carried out, the same would affect their rights and that they cannot be put to loss or sufferance because of mistakes committed by the counsel Therefore, the plaintiffs sought permission of the Court to withdraw the suit and to institute a suit alresh and furlher averred that no prejudice will be caused to the defendants if the plaintiffs are permitted to withdraw the suit and institute a suit afresh on the same cause of action.

5. Defendant No.3 filed counter resisting the said application and contended that initially, the suit was filed for declaration of title and recovery of possession and later on, the relief of recovery of possession was deleted and it is corrected as perpetual injunction without leave of the Court and by playing fraud on the Court. In those circumstances, defendant No.3 filed IA.No.8ll of 2021 under Order VI Rule 16 CPC for dismissal of the suit by striking out the pleadings and the same was allowed and the Revision preferret by the plaintiffs was also dismissed by the High Court I 4 'f, LNA. J CW.lto.2 t48 of 2024 vide order datt:d 03.03.2023 and when the suit was c,rrnir.g up for canying oLrt t1e amendment, the present application is filed on untenable gr ounds. It was further averred. that the present applicatiorr is llled after a lapse of 17 years from the drLte of filing of the suit b1,' 'rraking false allegations against the earlir:r cc unsel.

6. Defr:ndatrt No.3 fuither denied the contention <,f ;laintiffs that they ale r r possession of the suit schedule propeftl, ,rn< [ that the amendmen t v e s being carried out as per the orders of t te Cour1. It was flufthe'r verred that the plaintiffs lailed to assi.r.n valid or suffrcient rea vrn for filing an application seeking perrn ssion to withdrarv r he : uit and to file a suit afresh and finall.v, contended that the delen lrnts would be put to loss and hardship if thr same is allowed and prrryed to dismiss the application.

7. T'1rr: t'ial Court vide impugned order dated 1604.2024 allowed thi: a r rlication filed by the plaintiffs on paynl( nt of costs of Rs.5,00(11- rrcl directed the plaintiffs to file a fresh srrir w.ithin a period of orrc month, failing which, Iiberty gran:ec stands dismissed. A ggrieved by the said order, the presen: l(evision Petition is t'ile I n 5 LNA, J CRP.No.234E of 2024

8. Learned counsel for the revision petitioner/defendant No.3 contended that having allowed the application-IA.No.81l of 2021 which was filed to strike off unauthorised/illegal amendments in the plaint, the trial Court ought not to have allowed the application filed by the plaintiffs seeking permission to withdraw the suit and to file a fresh suit on the same cause of action. He further contended that the trial Court committed grave elror in allowing the application without considering the fact that the application has been filed nearly after two decades of filing the suit; that the trial Court failed to appreciate the application from proper perspective and further, failed to record any reasons while allowing the application. He further contended that the trial Court has failed to examine the period of limitation and failed to analyse the ratio laid down by the Hon'ble Supreme Court in several decisions, though the same were referred to, therefore, the impugned order is unsustainable and the same is liable to be set aside.

9. In support of his contentions, leamed counsel for the revlslon petitioner/defendant relied upon the judgment of a Division Bench of the erstwhile High Court of Andhra Pradesh in Sajjanam Wadla China Raiayya Vs. Chappal Venkateshwar i 6 LNA, J CRP.lt'o 2348 of 2024 tRaar, u,'here ir it is held that Order XXIII Rule 2 CpC pr.escribes that in any lr:sh suit instituted on permission granterd. the plaintiff shall be bol rd by law of limitation as if the first suit ra:; not been instituted arr l lurlher, held that the Court had rio jurisrlic,.ion to fix any time lbr f iling suits or presenting fresh complaints. 10. Per contra, learned counsel for respondent Nos. I to 5/plaintifis rc,ntended that the trial Court had rightlv al owed the application ;ince the parties cannot be made to s;ufIe r for the mistake ol c Lrnsel. He further contended that the sult rvr:s filed in the year ll0( 5 and an application for striking off the rle adings in the plaint rras filed by the defendants in the year 20ll and a Revision fil:,i against the order passed in the se id IA was dismissed b1 this Court on 03.03.2025 and thereafter irnnrediately, the present .rtplication was filed. Therefore, the cc nt,:ntion of defendant Nr .l that the present application was filed alier a period of two decad lr is incorrect. He further contended that rahen the suit was comirs Lp for caffying out amendments in terrs rf orders passed in lA. ro.81l of 2021, the present application v,,as Iiled even before caryirLlr out amendments, therefore, there is no ctelrry on the part of thc p rrintiffs. Leamed counser further conten<lec that no t AIR 1959 Ap 3+ I 1 I 1 LNA, J CRP.No.234E of 2024 prejudice will be oaused to the defendants sinoe all the grounds available under law can be raised by them in the fresh suit to be hled, therefore, the trial Court, taking into account the peculiar facts and circumstances of the case, had rightly allowed the application and the revision petitioner failed to point out any irregularity or illegality in the impugned order and hence, the Revision Petition is liable to be dismissed. 1 1. In support of his submissions, leamed counsel for respondent Nos.1 to 5 placed reliance on the judgment of the High Courl ol Orissa in Trinath Basanl Ruv and another Vs. Sk.Mohamood and another2, wherein a Division Bench of Orissa High Courl at paras 12 and 13 of its judgment observed AS hereunder:- " 12. The Apex Court had an occasion to interprete the scope and ambit of sub-rule (3) of Rule I Order 23 CPC in V. Rajendran v. Annasamy Pandian (dead) through legal representatives Karthyayani Natchiar, (2017) 5 SCC 63. Taking a cue from K.S. Bhoopathy, the Apex Court held in terms of Order 23 Rule 1(3)(b) where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh 'AIR)otg ori zs 8 LNA, J CRP.\o.?348 of 2024 suit ll e Court may permit the plaintiff to withdrav, , he 1J. In interpreting the words ,'suffit:icnt grount'.s", lhere are two viey)s; One view iS that thtse groun( s itt clause (b) must be "ejusdem generis,, tlith tlt.o.tc r clause (a), that is, it must be of the sotne nahre. Lts the ground in clause (a), that is fot.n,al tle.ft,ct cr at least analogous to them; and the otl ttr vr'rrrr, rr ls that tlte words "other sfficient grow1ds,, in clatise ( t.) should be read independent of the ,,*ord.: a "lttruc,' ,le.fect" and clause (a). Court has been giv,:t a wi,:Jr:r ltscretion to allow withdrawal _from suit in lke intei'es )./' justice in cases where such a prayer i,, tt()t cov(.retl b1' clause (a)."

12. Perusrl of impugned order reveals that the tritl Court by referring tr judgment ol Hon'ble Supreme C ourl in K.S,Bhooptth.l,'s case (cited supra) has allowed thi: apllication, however, the trial Court failed to record the reasons Ib. e rercising discretionary power vested in it and thereby, pemi ting the plaintiffs to ',, thdraw the suit and to file fresh suit or1 sarne cause of action. fh: tr.ial Court has also failed to consider tfe rspect of limitation sin :: rhe fresh suit to be instituted by the p tai rtilfs for declaratiorr o' title and injunction shall be within tl*: t,eriod of limitafibr:4ior n tl-re date of cause of action. -/ I 9 LNA, J CRP.No.2318 of 2tD1

13. As per Order XXIII Rule l(3)(a) CPC, the Court shall grant permission to withdraw a suit with liberty to institute a fresh suit when it is satisfied that the suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing plaintiff to institute a fresh suit.

14. ln Trinath Basant Rav's case (cited supra), the High Court of Orissa held that Court has been given a wide discretion to allow ,1 withdrawal of the suit in the interest ofjustice in case where such a prayer is not covered by clause (a) and further observed that the words'sufficient grounds' in clause (b) should be read independent of the words 'formal defect' and clause (a). I 5. Now, it has to be examined whether the case of the ptaintiffs falls under clause (a) or clause (b) of Order XXIII Rule 1(3) CPC and whether the trial Court is justified in allowing the application.

16. It is appropriate to refer to judgments of the Hon'ble Supreme Court in K.S.Bhoopathy Vs. Kokila3 and V.Rajendran Vs. Annasamy Pandian (dead) thorugh LRs-Karthyoyani Natchiara, wherein it is held that the Court can permit plaintiffs to 3 lzooo; s scc <se 4 (2017) 5 scc 63 !,, '._rL+!.?4!.J 7 10 LNA, J CRP.\to.?348 oJ' 2024 withdraiv thLr slrit and to institute fresh suit if the Corl t i; satisfied that sufficierrt grounds are made out. The Hon'ble Supre me Court has also obs, rved that the power under Order XXIII F!_ le 1(3) CpC is discrerionr 11,and the same has to be exerciseij by tht: ( ourt with caution and ,:ircumspection while granting leave to insritt te a fresh suit.

17. Perus al of record would disclose that the plai rtilfs are blaming thei ' earlier counsel for carrying out amen<lrterrts in the plaint rvitl-ror t leave of the court and that the originat tlz intiff has no education ri qualification to understand and no know le< ge of the draft prepare 1 by their earlier counsel. It is interestinlg to note that the plaintill.s e re not claiming thar the original plainrifl is illiterate but are sirr tly contending that the original plainriff has no educational < uaiification. It is the apt to note the legal nriLxim that ignoran.tia .jt ris non exqtsat, which means ignorar rce of law excuses no o )0. The original plaintiff having signed tht: plaint and having presetted the same before the Court cannoT row tum 6 around and sr y that he has no educational qualification :nc as such, he has no kncvrledge of the ciraft prepared by initial/earl er counsel. J[q plaintiffi except saying that the pafties cannor te made to .': l LNA, J CRP.N,.?34E oJ 2024 suffer for mistakes of their counsel, have not raised or agitated any other ground, much less sufficient reason or ground for permitting them to withdraw the suit and to file a suit afresh on the same cause of action.

18. It is relevant to note that initially, the suit was filed for declaration and recovery of possession ofthe suit schedule property and the same has been corrected in the plaint to that of declaration and perpetual injunction without leave of the Court, and such corrections amount to taking a different stand altogether and ultimately, it amounts to changing the very nature of the suit. Therefore, the same cannot be construed as a formal defect in the suit and further, no sufficient grounds or reasons have been made out by the plaintiffs while seeking permission to withdraw the suit and to file a suit afresh on the same cause of action. The trial Court has not analysed the facts and circumstances of the case in proper perspective and also the purport of Order XXIII Rule 1(3) CPC Therefore, the impugned order passed by the trial Court is unsustainable and the same is liable to be set aside. , l 12 LNA, J CRI'.tto..'318 of 2024

19. ln th e result, the Revision Petition is allowed axd the order dated 16.04.!)24 in I.A.No.50l of 2023 in OS.No 205 ol 2005 passed by tht Principal Junior Civil Judge, Vikarabad is st t aside 20. Mis< ellaneous petitions pending, if any, shall slarrd closed. No costs //TRUE COPY// SdI MOHD. ISMAIL DEPUIY REGISTRAR SECTION OFFICER One Fair Copy to the Hon'ble Sri Justice LAXMI NARAYANA ALISHETW (Fr>r His Lordships Kind Perusal) To,

1. The Princif €l Junior Civil Judge cum Judicial lr/agistrate o First Class at Vikarabad. 2. l l LR Copi ::; 3. The Under iecretary, Union of lndia Ministry of law, Justioe anC Company Affairs, Nev ' f elhi

4. The Secret;uy Telangana Advocates Association, Library, l- igt Court Buildings H lrlerabad

5. One CC to SrRl. R RANGANATHAN Advocate [OPUC] 6. One CC to lRl.SINGH THAKUR ANOOP, Advocate [OPU{)] 7. Two CD Cc rles. Plvl/kam i' HIGH COURT DATED:03/04/20? t ORDER CRP.No.2348 of :11024 c ,1- . 1! r.' ;i 1-) C-t- ?s * p .f *+ \A '- ,.'.,/---',,-\"-/'/ ' ''' -":a'- ,i1,,)' .,) , ALLOWNG THE C:IVIL REVISION PETITION _) I )