KOKILA Vs. K S BHOOPATHY

JUDGEMENT

(1.) THE petitioners in C. M. P. No. 1085 of 1997 filed a suit for permanent injunction, restraining the respondents from installing machineries to prevent nuisance and also for exclusive usage of pathway shown in red colour in the plaint plan. THE suit was decreed in the Court of first instance and on appeal by the respondents in A. S. No. 95 of 1993, the decree was modified and a finding was given that the disputed pathway is common to both. Being aggrieved by the order of the appellate court, the Second Appeal no. 807 of 1996 has been filed by the plaintiffs as appellants.

(2.) DURING the pendency of the second appeal, after arguing the case for some time, the learned counsel for the appellants submitted that the appellants may be permitted to withdraw the suit, with a liberty to file a fresh suit as to the title and the consequent cloud over the same absolute exclusive title to his pathway cannot be considered much less granted in the bare injunction suit without the prayer for declaration. It is also averred that by mistake a prayer for declaration was not sought for in the lower court. The respondents also did not raise the said plea in the written statement, much less, before the appellate court and the main grievance is that a suit for declaration is essential in order to show that the suit pathway is situated within the land owned by the appellants.

(3.) IN Baniram v. Gaind, A. I. R. 1982 S. C. 789, the Supreme court held thus: "having considered the fact that non-pleading of a point may prove a technical impediment and may result in the dismissal of the appeal which may impede a fresh adjudication if a point is to be made though belated, the Supreme Court considers it just and proper in the interests of justice to permit the appellant- plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action, subject to the payment of Rs. 1,000 by way of costs in addition to all other costs. "