B H RADHAKRISHNA Vs. GURUVANNA

JUDGEMENT

(1.) The plaintiff (Petitioner) filed an appplication under Order 23, Rule 1. CPC. praying lor permission to withdraw the suit with liberty to the a iresh suit with necessary correction regarding trie description of the plaint schedule property, before the Additional Civil Judge, shimoga in RA. No.117 of 1966. This application was opposed by tne dependant (respondent) on the ground that the plaintiff's suit was dismissed in the trial Court and if permission sought for was given at this stage, the defendant would be put to irreparable loss and his case would be prejudiced. The learned Civil Judge dismissed the application of the plaintiff, holding that if the application for withdrawal was granted, allowing him to file a fresh suit, the plaintiff would be allowed to file a suit in respect of a different subject matter. It was also found that the plaintiff failed to claim proper reliefs in his suit. Aggrieved by this decision, the plaintiff has preferred this revision petition.

(2.) The plaintiff filed the suit for a declaration of his title, possession and recovery of mesne profits in respect of Block Nos. 3 and 4 of survey No.26 of Hathi Katte village, Bhaoravathi Taluk, Shimoga District on the strength of the Saguvali chit Ext.P-1, issued by the Deputy Commissioner. The defendant contended that the suit property was not the one granted to him under Ext.P-1. After considering the evidence, the Munsiff dismissed the suit holding that the identity of the property was not established. The plaintiff preferred RA. No.117/66 to the Court of the Civil Judge, Shimoga, which came up for disposal before the Additional Civil Judge. During the pendency of the appeal, the plaintiff got corrected Ext.P-1 by the Deputy Commissioner. The correction was to the effect that plots Nos.3 and 4 were in survey No.36, corresponding to the suit schedule land. On the strength of this, he filed an application for amendment of the plaint, but the learned Civil Judge rejected it. Thereafter, the plaintiff filed the present application.

(3.) It is no doubt true that it is not right to allow the plaintiff to start again with a clean slate after he had fought and lost. The appellate court, in proper cases, can grant permission to withdraw a suit with liberty to bring a fresh suit. But that power has to be used sparingly and cautiously. If the plaintiff has failed to conduct his case with due care and diligence, he should not be allowed to commence a fresh suit in order to avoid the result of his previous negligence to the prejudice of the opposite party. But in the instant case, the case of the plaintiff was dismissed on the ground that the identity of the suit property was not established. The plaintiff prosecuted his case in the trial Court with due care and diligence on the strength of Ext.P-1. Ext.P-1 mentioned the survey number wrongly. But the plaintiff was given possession of the suit land. Subsequently, the competent authority has corrected the mistake in Ext.P-1. But the property, which was the subject matter of the suit, is the same when the suit was filed on the strength of Ext.P-1 and also after Ext.P-1 is corrected. In such cases, the plaintiff could be granted permission to withdraw the suit with liberty to bring the suit in respect of the same subject matter of the former suit. By doing so, no prejudice would be caused to the defendant.