Court. In support of his contention, he relied on a decision in Anil Kumar v. VUay Pal Singh and othersl

...RESPONDENTS/DEFENDANTS Syed Zabi, S/o Late Syed Shareef Aged about 22 years, Occ Household Syed Omar Farooq, S/o Syed Amru Aged about 20 years, Occ. Business All are R/o Narayanpet Town and Mandal District Narayanpet. ( Petitioners 5 and 6 are not necessary parties to this CRP) ..,RESPONDENTS/PLAINTIFFS ) .) 4 5 b 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 grant interim stay of all further proceedings in o.s No.57 of zo15 on the file of the Senior Civil Judge at Narayanpet. Counsel for the Petitioners: Sri Karnam Ramesh Counsel for the Respondents 1 to 4: Sri M. Damodar Reddy The Court delivered the following JUDGMENT: THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO cRP.NO.3841 0F 2024 JUDGMENT

1. This Civil Revision Petition is filed aggrieVed by the order in IA.No.299 of 2024, dated 12.11.2024 in OS.No.57 of 201.5 passed by learned Senior Civil ludge at Narayanpet.

2. The above said application is filed by the petitioners/plaintiffs under Order XXIII Rule 1(1) of Civil Procedure Code (for short C.P.C.) r/w Rule 28 of Civil Rules of Practice to grant leave to them to abandon the relief of recovery of possession from prayer No.1 of the main suit and to bring consequential amendments in the pleadings.

2.2. The consequential amendments are under: In the plaint paragraph No.9 of the plaint the valuation of the subject matter is to be noted as 1/2 of the value comes to Rs.4,10,920/- upon which court fee comes to Rs.7,626/- as per Sec.24 (b) of T.S.C.F & S.V.Act., which is proper and sufficient. In the Rrst prayer of the plaint the prayer No. i) is to be amended as Decree the suit of the plaintiffs for declaration of title and consequential of relief of injunction over the suit house.

3. Learned Trial Court has dismissed the said aPplication.

4. Petitioner No.4 who is plaintiff No.4 in the suit filed his affidavit on his behalf and on behalf of other plaintiffs and contended that they filed suit for declaration of title and recovery of possession and in the f: ;' 2 BRMR,J ('.RP -3841_2024 meanwhile mediation was held on 18.01.2018, out of such mediation respondents/defenda nts handed over the possession to that effect and they filed photographs which were marked as Exhibits. As they got possession of the suit property, there is no need to seek relief of recovery of possession and prayed to abandon the relief of recovery of possession of the suit house from prayer No.1. It is further stated in the affidavit that continuing the relief of recovery of possession will remain deFective and thereby, they are compelled to abandon the part of the claim.

5. Respondent Nos.l to 4 have filed their counter and contended that there was no mediation on 18.01.2018. Respondent No.3/Defendant No.3 has filed suit for perpetual injunction against the petitioners in OS.No.9 of 2018 restraining them from interfering in their possession. Respondent No.3 has filed application for grant of temporary injunction vlde IA.No.71 of 2018, the same was allowed on contest on 16.10.2018 holding that respondent No.3 herein, who is the plaintiff in OS.No.9 of 2018 is in possession of the suit house. Petitioners have challenged the same vide CMA No.3 of 2018 on the file of the VII Additional District Judge at Mahbubnagar, and the same was transferred to Principal District Judge at Narayanpet, renumbered as CMA No.14 of 2018 which came to be dismissed on 17.O3.2O23. 6 failed Learned counsel for the petitioners submits that the Trial Court to exercise the jurisdiction and erroneously dismissed the I i 3 BRMR,J cRP 3841 2024 application seeking to abandon the relief of recovery of possession from prayer No.1 in the suit, claim cannot be rejected as the petitioners/pla intiffs have got liberty with regard to the claims made by them in the sult in pursuance of the mediation held on 18.01.2018. Counsel further submits that the Trial Court ought to have seen that PW.2 in his deposition dated 20.06.2023 has stated about the mediation taken place on 18.01.2018 and delivery of possession by the defendants. PW.2 was also cross-examined to that effect and the said fact was ignored by the Trial Court. In support of his contention, he relied on a decision in Anil Kumar Singh Vs. VUay Pal Singh and othersl.

7. Learned counsel for the respondent Nos.1 to 4 contended that the Trial Court has rightly dismissed the application filed by the petitioners to abandon part of the claim by giving sufficient reasons. no interference is called for and relied on a decision in V. Hanya Naik and Others Vs. M. Krishna Reddy and Others2.

8. Order XXIII Rule 1 of Civil Procedure Code which is relevant to decide the question reads as under: Order XXIII Rule 1 of CPC provides : (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: I (2018) 12 scc 584 2 zoos 1o; ero +zs 4 BRMR,J cRP_3841_2024 Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court. ... (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by- a pieader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) 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 sublect- matter of such suit or such part of the claim. (4) Where the pla intrff- (a) abandons any suit or part of claim under sub-rule (1). or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiFfs to abandon a suit or part oF a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiFfs'

9. Petitioners who are the plalntiffs in the suit have filed OS.No'57 of 2015 against the respondent Nos.1 to 4/defendants for declaration of title and recovery of possession by evicting the defendants from the Suit House 1.e., H.No.3-2-102 situated at Pathy Bazar locality of ttariyS'npet. Respondent Nos.l to 4 who are the defendants in the suit 5 BRMR,J cRP_3441-2024 have filed their written statement contending that defendant No.3 is in possession of suit schedule property.

10. Issues are framed in the suit on 22.08.2017 and trial was commenced on 23.L1.2O22, PW.1 was also examined to that effect. Plaintiff No.5 is examined as PW.2 in the suit. wherein, he stated that on 18.01.2018 there was mediatlon, as per the outcome of the mediation, defendants have handed over the possession of the suit house. PW.2 was also cross-examlned by the respondent's/defendant's counsel.

11. On r.eading of Order XXIII Rule 1 of CPC, goes to show that the plaintiff has a right to file an application to abandon his suit or part thereof at any time after its filing. 1,2. The Supreme Court in Anil Kumar Singh case (supral) observed at Para No.23 which reads as under:

23. In our considered opinion, when the plaintiff files an application under order 23 Rule l and prays for permission to withdraw the suit, whether in full or part, he is always at Iiberty to do so and in such case, the defendant has no right to raise any objection to such prayer being made by the plaintiFf except to ask for payment of the costs to him by the plaintiff as provided in sub-rule (4).

13. The decisions cited by respondent's counsel in V. Hanya Naik and Others (supra) is not applicable to the case on hand in view of the fact that in the above said decision, suit was filed seeking declaration that they are surviving LR's of Late V.Rashya Naik, no one was 6 BRMR,J cRP 3A4l 2024 t. impleaded as defendant and it was filed against all concerned' The facts in the above decision are completely different with the facts on hand.

14.1. In view of the ratio laid down by the Supreme Court in Anil Kumar Singh case (supral), petitioners/pla intiffs are the masters of their case, they can abandon their part of their claim at any time after the institution of the suit. The finding of the Trial Court that the question of who is in physical possession becomes a matter of trial which has to be decided after full-fledged trial is perverse and has committed irregularity in dismissing the application and therefore, the impugned order is unsustainable and the same is liable to be set aside'

14.2. In view of sub-rule (1) of Rule 1 r/w sub-rule (4)(a) petitioners are liable to pay costs of Rs.4,000/- to respondent Nos.1 to 4.

15. Accordingly, the Civil Revision Petition is allowed on costs, the order passed by learned Senior Civil Judge at Narayanpet in IA.No.299 of 2024 in OS.No.57 of 2Ot5, dated 12.11.2024 is set aside. Petltioners shall pay costs of Rs.4,000/- to respondent Nos'1 to 4. Interim orders, if any shall stand vacated and Miscellaneous appllcation/s, pending if any, shall stand closed. //TRUE COPY// To, t

1. The Senior Civil Judge, at Narayanpet 2. One CC to Sri Karnam Ramesh, Advocate [OPUC] 3. One CC to Sri M. Damodar Reddy, Advocate [OPUC] 4. Two CD Copies VH/ghM SD/. T. JAYASREE REGTSTRAR trT:* ! s="r'o* oFFrcER I HIGH COURT DATED: 2810312025 I ) JUDGMENT CRP.No.3841 of 2024 1tt ES IA IF o^ G o i zg APH 2025 05g1'611;H I q.O t c ALLOWING THE CRP @n' 1A