KRISHNA Vs. ASHOK

JUDGEMENT

(1.) The present appeal is filed by the appellant/plaintiff aggrieved by the judgment and order dtd. 23/1/2015 passed in RA.No.23/2011 on the file of Senior Civil Judge, Honavar (itinerary at Bhatkal) (hereinafter referred to as "the First Appellate Court" fir short), in and by which the First Appellate Court while allowing the appeal filed by defendant No.1, set aside the judgment and decree dtd. 8/4/2011 passed in O.S.No.42/2005 on the file of Additional Civil Judge (Jr.Dn.), Bhatkal (hereinafter referred to as "the Trial Court).

(2.) The above suit in O.S.No.42/2005 was filed by the appellant/plaintiff seeking relief of permanent injunction, which was decreed as prayed for by the Trial Court. Aggrieved by the same, defendant No.1 preferred regular appeal in R.A.No.23/2011 before the First Appellate Court. The First Appellate Court by its impugned judgment and order dtd. 23/1/2015 allowed the appeal and set aside the judgment and decree passed by the Trial Court. Being aggrieved by the same, the plaintiff/appellant has filed the present appeal.

(3.) Learned counsel for the appellant has filed an application under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 seeking permission to withdraw the suit in O.S.No.42/2005 reserving liberty to the plaintiff to file fresh suit on the subject matter in future if need arises, on the premise that at present there is no obstruction from the defendants and that cause of action is not subsisting.