SHRISHAIL Vs. PARWATIBAI

JUDGEMENT

(1.) The petitioner is the plaintiff before this Court assailing the order dtd. 15/2/2018 passed by the Addl. Civil Judge and J.M.F.C., Jamakhandi on I.A.No.13 in O.S.No.160/2011 wherein the trial Court has rejected the application filed by the plaintiff under order XXIII Rule 1 and 3 read with Sec. 151 of Code of Civil Procedure, 1908 (for short, 'C.P.C.') to withdraw the suit.

(2.) Brief facts of the case giving raise to file this writ petition are that the petitioner has instituted a suit for mandatory injunction as against the defendant directing him to evict the encroached portion marked by letters CDGH annexed to the plaint into the suit plot of the plaintiff CTS No.5212-5217/6F situated at Mahantesh Nagar, Jamakhandi and to handover the encroached portion to the plaintiff and grant permanent injunction restraining the defendant permanently from committing any encroachments by trespassing into the suit property. The respondent entered appearance before the trial Court and filed written statement opposing the prayers in the suit. During the pendency of the suit, the plaintiff filed an application in I.A.No.13 seeking to withdraw the suit on the ground that he does not want to prosecute the said suit. The trial Court rejected the said application vide impugned order dtd. 15/2/2018. Hence, the petitioner is before this Court.

(3.) Learned counsel for petitioner submits that the trial Court has committed an error in rejecting the application filed by the petitioner. The trial Court has proceeded to reject the application on the ground that the plaintiff has sought for withdrawal of the suit with liberty to file fresh suit on the same cause of action and when the plaintiff came to know that the report filed by the Court Commissioner is vague and does not disclose, whether the defendant has encroached the suit property or not. He further submits that the Commissioner report submitted before the trial Court is so vague it is not possible to identify, clearly the encroached portion in the suit property. Hence, he seeks for allowing the petition by permitting to withdraw the suit.