EUGENE GEORGE PENN, S/O. MR. HERALD EDWARD PENN Vs. MS. ROSIE DSOUZA, (SINCE DECEASED NO LEGAL HEIRS NOTICE MAY BE DISPENSED WITH AS SUIT AGAINST RESPONDENT NO. 1 IN THE TRIAL COURT WAS ABATED), MR. M.C. PAUL AND OTHERS

JUDGEMENT

(1.) THE appellant herein the 1st plaintiff in O.S. No. 6160/2004 The suit in question was filed by the appellant along with the plaintiffs no. 2 to 5 against the defendants who had been impleaded in the suit seeking for the relief of permanent injunction to retrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. The 3rd defendant who had been initially impleaded was deleted during the pendency of the suit. The 1st defendant did not oppose the suit. The 2nd defendant however had indicated that the property had already been sold based on the legacy granted under the WILL executed in favour of the 1st defendant and therefore the suit for injunction was not maintainable. The Court below after taking note of the contention has dismissed the suit by its judgment dated 13.07.2011 with cost of Rs. 10,000/ -. It is against the said judgment, the 1st plaintiff is before this Court in this appeal. While seeking that the judgment of the Court below be set aside, the learned counsel for the appellant would also contend that the manner in which the suit was instituted itself was not appropriate inasmuch as the 1st plaintiff has been dragged into filing such suit, though, the relief in the nature as prayed was not appropriate to have been sought by the plaintiff. However, an appropriate comprehensive suit should have been filed. It is his contention that in view of the same, during the pendency of the suit itself, an application was attempted to be filed before the Court below seeking leave to withdraw the suit. The said application has not been taken on record. It is in that context, an application under Order 23, Rule 1');">1 of Civil Procedure Code is filed before this Court in IA. No. 1/12 seeking permission to withdraw the suit itself.

(2.) IN that light having considered the contention put forth, the legal position is well settled that while considering an application under Order 23, Rule 1');">1 of Civil Procedure Code filed in an appeal seeking leave to withdraw the suit, the Court should keep in view as to whether any of the findings which have been rendered between the parties would affect the rights of the succeeding party, if such permission is granted to withdraw the suit. In that regard, having perused the judgment passed by the Court below, it is seen that as already noticed, the 3rd defendant who is said to have purchased the property subsequently had been deleted as a defendant before the Court below. Hence, the only two defendants who were before the Court was the 1st and the 2nd defendant. Insofar as the 1st defendant though she is a beneficiary under the WILL said to have been executed by the wife of the 1st plaintiff, no serious dispute has been raised since the 2nd defendant has put forth the contention that the property had been sold subsequently. In the proceedings before the Court below even the defendants who were on record did not choose to tender any evidence and it was the plaintiff who had tendered evidence and a witness had been examined.

(3.) THEREFORE keeping these aspects in view, I am of the opinion that IA. No. 1/12 filed by the appellant is to be allowed. Accordingly, the same is allowed and leave is granted to withdraw the suit in O.S. No. 6160/2004 which is disposed as withdrawn with liberty to file appropriate suit in accordance with law. In that view of the matter, the judgment dated 13.07.2011 passed in the said suit would not survive for consideration as the basis for the same has been eroded by withdrawing the suit. Accordingly, the suit in O.S. No. 6160/2004 is dismissed as withdrawn. In that view of the matter, the instant appeal would not survive for consideration. Accordingly, the appeal also stands disposed of.