The High Court · 2025

...Respondents/Respondents/Defendants lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all further proceedings in o.s. No. 482 of 2022 on the file of the court of senior Civil Judge at Mulugu, pending disposal of main C.R.P. in the interest of justice. Counsel for the Petitioner : Sri S Chandrasekhar Counsel for the Respondents: Sri Rama Rao Baleedupally The Court made the following: ORDER , HON'BLE SRT JUSTICE LAXMI NARAYAITA ALISHETTY crwL RE\rISIO N PETI TION No.2938 oF 2024 ORDER: This Civil Revision petition is filed aggrieved by the order dated 05.07.2024, passed in I.A.No.82 of 2024 in O.S.No.482 of 2022, by the Senior Civil Judge, Mulugu (for short, .the trial CourtJ.

2. Heard Sri petitioner and respondents S.Charrdrasekhar, learned Sri B.Rama Rao, Iearned counsel for the counsel for the

3. Facts of the case in rrutshell are that the petitioner has filed a suit in O.S.No.4g2 of 2022 for perpetual injunction against the respondents herein in respect of the land admeasuring Ac.0_15 gts in Survey No.97g, pathipally village, Mulugu Mandal, Jayashankar Bhupalapaily District (for short .suit property); that he has also filed an application for ad_interim injunction and the sarne was granted b-v the trial Court. The petitioner has filed I'A'No'S 0f 2022 before the trial court for amendment of the plaint on the ground that his counsel did not properly mention the boundaries of suit schedule property. However, the said I.A., was i LNA, J CRP.No.293E of 2021 dismissed by the trial Court uide order dated 28.O6.2023 and 2 there was no further challenge to the said order. \

4. The petitioner has filed another I.A.No.82 of 2024 contending that nature of suit property has been changed and that the boundaries of suit property as well as defendants' addresses were not correctly mentioned in the suit; tl'rat he has purchased the suit property in the year 1980 and he was also issued with title deed; that he had worked as a Government Teacher at Kondapur and Rayaparthy and that he was forced to reside at Warangal; that taking advantage of his absence, the respondents had occupied the suit properQr. It is further contended that the petitioner had retired from the service and he is aged about 8O years and suffering with old age ailments. By contending thus, he is seeking permission to withdraw the suit and to file a fresh comprehensive suit.

5. The respondents have liled a counter in the said I.A.No.82 of 2024, denyrng the averments of the petitioner and stated that the petitioner had already sold the suit property to them by executing unregistered sale deeds dated 18.05. 1985 and O6.06.2001; that respondent No.l has constructed residential house in the suit schf:drrle property under Indiramma Pathakam in the name of his ", LNA, J daughter and also established a business *"ror"{ff!!^(iri."iili Flour mill and that at no point of time the petitioner was in possession of the suit schedule property. Further, it was contended that earlier the application frled by the petitioner for amendment of plaint was dismissed by the trial court on 28.06.2023 on the ground that the petitioner was not able to identify the l0cation of the suit property; that without discrosing the nature of the suit intending to be filed, the petitioner filed the application i.e., I.A.No.g2 of 2024 and therefore, said application is liable to be dismissed.

6. The trial Court, having considered the application filed by the petitioner as well as the counter Iiled by the respondents dismissed I.A.No.82 of 2024 uide ord,er dated 05.O7.2024 with an observation that earlier, the petitioner filed al application for amendment of suit property and the sarne was dismissed on merits and again the petitioner came up with another application seeking permission to withdraw the suit and fire fresh suit a,d that one of the ground mentioned in the application is same i.e., the boundaries of suit property were wrongly mentioned in the suit, therefore, the petitioner cannot be permitted to withdraw the sui{g.s it would be in conflict with the order passed in I.A.No.S of I I LNA, J CRP.No.2938 of 2024 2022. Aggrieved by the said order dated O5.O7.2024, in I.A-No.82 ,+ of 2024, the petitioner has filed the present Civil Revision Petition. \

7. Learned counsel for the petitioner has contended that initially, the suit was hled for perpetual injunction and an ad. inteim injunction was granted by the Trial Court. However, owing to his old age ailments; the petitioner was hospitalized; he is retired Government Teacher and he *a" re"idittg at Warangal and therefore, the petitioner was away from the subject property. It is further contended that earlier the petitioner has filed I.A.No.S of 2022 for amendment of ptaint as the boundaries of the suit property were not properly mentioned, but the salne was dismissed, however, due to change in circumstances, an application was hled by the petitioner seeking permission to withdraw the suit and to file a comprehensive suit with appropriate reliefs. a. The learned counsel for the petitioner has relied upon following judgments of the erstwhile High Court of Andhra Pradesh: (i) Mohannmad Gtffur Vs. Uppada Mad.agga and anothert ' zo11 (4) ALT 245 5 (ii) Pillakathuku Subbarathnam LNA, J CRP.No.2938 ol202a q.nd q.rr'other I/s. Executitrc Officer, polathala Mallesutarasur@mg Temple and. others2 and (iii) Lakshrnrrnna vs. Chinna Gouindappagari Chend.ragud.us.

9. Per contra, learned counsel for the respondents had contended that earlier the petitioner has filed I.A.No.S of 2022 for amendment of the plaint and the same was dismissed by the trial Court on merits uide order dated 2g.06.2023. Tine petitioner did not challenge the said order and thus, the same has become final. one of the grounds lor hling present application is same as that of earlier application, therefore, the same is not maintainable and the trial Court, by taking into consideration the facts and circumstances of the case, has rightly dismissed the application. Consideration:

10. Perusal of the record would show that initialy the petitioner has filed a suit for perpetual injunction and obtained interim injunction. Thereafter, I.A.No.S of 2022 was filed for amendment of plaint specifically for amendment of boundaries of the suit schedule property, however, the said application was dismissed by 2 zoos 1+1 er +23 ' r998 (2) ALT 263 LNA, J CRP.No.2936 of2024 the trial Colart uide order dated 28.06.2023. Further, it is the case 6 of the petitioner that he is Government Teacher, residing at ,{ Warangal, he is aged about 80 years and suffering with old age ailments and taking advantage of his absence, the respondents had occupied the suit property. Therefore, in view of change in circumstances Ernd also non mentioning of correct boundaries of the suit schedule property, the petitioner filed I.A.No.82 of 2024 seeking permission to withdraw the suit and to file a fresh comprehensive suit. However, the trial Court dismissed the I.A. uid.e order dated 05.07.2024 only on the ground that earlier application filed by the petitioner for amendment of boundaries of the schedule property was dismissed on merits and the subsequent application is in conflict with the earlier order.

11. A perusal of the counter filed by respondent No.l would indicate that subject property is no more agricuttural land and in fact, it has become part of residential area of village and respondent No.1 has also constructed a house under Indiramma Pathakam. It is relevant to note that the petitioner initially filed suit for injunction and in view of the change in circumstances, he intended to file fresh comprehensive suit. Earlier, the petitioner has filed an application i.e., I.A.No.5 of 2022 for amendment of 7 plaint particutarly for mentioning correct o""i[l!;rrriitrrfr! subject propert5r. However, the said application was dismissed by the trial Court uide order dated 2g.06.2023. LNA, J L2. ln Mohammad Gaffar's cdse supra, the plaintiff initially filed suit for permanent injunction and thereafter sought permission to file comprehensive suit, wherein, the learned Single Judge of the erstwhile Andhra pradesh High Court, has granted permission to the plaintiff to withdraw the suit for injunction and to file comprehensive suit, by observing as under: '5. In my opinion, the Court betou,t has not properlg ansi.dered the apprication from its true perspectiue. when the petitioner made hi_s apptbation for qmendm.ent of the suit, the same u)as dlsmissed obuiouslg on th.e grounfl. that the proposed. qmeruTm.ent would_ ampletelg change th.e nadtre of tFe suit. Hauing thus disaltoued the petitioner to cLaim mmprehensiue relief bg wag of an amend_ment, it utoutd be ulnllg unjust and iniquitous to deny permission to him to uithdraut the suit uith libertg to fil.e a comprehenstue suit. Tle Court belou ho.s not considered one of the tuo ground.s on uhich a suit cqn be permitted to be utthdrautn uith libertg to institute a fresh suit. It has merelg refened to sub-clause (a) of ctause (3) of Ord.er WIII RuIe l, tahile omitting to consi_d.er sub_clause (b), uhich perTains to exbtence of suffictent ground.s for allowing the plaintiff to in stitute a fresh suit for the subject matter of a suit or part of a claim.' LNA, J CRP.No.29J8 of 2024 13. In Ptllo.ko:thuku Subbaro:thno,m,s ccse supra, the plaintiff IJ {,. sought permission to withdraw the suit and to file fresh suit as there are certain serious defects in the pleading and also relief \ prayed for. Learned single Judge of the erstwhile Andhra pradesh High Court, by referring to Order XXIII Rule 3(b) of CpC has a-llowed the Revision and permitted the ptaintiff to withdraw the suit with a liberty to file fresh suit.

14. The facts of above referred cases squarely apply to the present case. It is relevant to note that earlier application i.e., I.A.No.S of 2022 was filed specifically lor amendment of boundaries of the suit property. However, the present application i.e., I.A.No.S2 of 2024 is filed seeking permission to file fresh suit in view of change in circumstances and therefore, the order passed in I.A.No.S of 2022 cannot be construed as res judicata. Though the petitioner is not diligent in pursuing the matter, considering his old age, health condition and also the fact ttrat he was residing away from the subject property, ttris Court is inclined to entertain the present revision.

15. In considered opinion of this Court, the reasons and the grounds shown by the petitioner for permission to withdraw the suit and to file fresh comprehensive suit, are proper and --..-_7 9 LNA, J suflicient. Therefore, the impugned order O"r.:*{{.';f.:!;:;; passed by the triar court in I.A.No.82 of 2024 in o.S.No.482 of 2022 is liable to be set aside.

16. Accordingly, civil Revision petition is allowed and the impugned order dated OS.OZ.2024 is set aside and consequently, LA.No.82 of 2024 in O.S.No.482 of 2022, on the file of the Senior Civil Judge, Mulugu stands allowed. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed. //TRUE COPY// Sd/- V. KAVITHA ASSISTANT REGISTRAR a N OFFICER To, 1 2 3 4 The Senior Civil Judge at Mulugu One CC to Sri S Chandrasekhar, Advocate tOpUCl One CC to Sri Rama Rao Baleedupally, Advocate tOpUCI Two CD Copies ADI(gh +* HIGH COURT DATED:1010112025 ORDER CRP.No.2938 of 2024 ( c O )(( T4 Q4 18 tfi ?02s /?r: i',, a1. i.1.,,r: .r' ALLOWING THE CRP WITHOUT COSTS @ +va t#