MOHAMMAD GAFFUR Vs. UPPADA MADAYYA

JUDGEMENT

(1.) THIS civil revision petition arises out of order, dated 30.12.2010, in I.A.No.172 of 2010 in O.S.No.9 of 2005 on the file of the learned Junior Civil Judge, Ichapuram.

(2.) THE petitioner is the plaintiff in O.5.No.9 of 2005, which was filed for permanent injunction restraining the respondents from interfering with his possession of the suit schedule property. During the pendency of the suit, he filed I.A.No.190 of 2009 seeking permission to amend the plaint for adding the reliefs of mandatory injunction, directing the respondents to remove the permanent structures constructed over the suit schedule property and recovery of possession. THE said IA was dismissed on 28.06.2010. THEreafter, the petitioner filed the present application i.e., I.A.No.172 of 2010, seeking permission to withdraw the suit with liberty to him to file a comprehensive suit for declaration of title, injunction and recovery of possession. THE said IA having been dismissed, he filed the present civil revision petition.

(3.) IN my opinion, the Court below has not properly considered the application from its true perspective. When the petitioner made his application for amendment of the suit, the same was dismissed obviously on the ground that the proposed amendment would completely change the nature of the suit. Having thus disallowed the petitioner to claim comprehensive relief by way of an amendment, it would be wholly unjust and iniquitous to deny permission to him to withdraw the suit with liberty to file a comprehensive suit. The Court below has not considered one of the two grounds on which a suit can be permitted to be withdrawn with liberty to institute a fresh suit. It has merely referred to sub-clause (a) of clause (3) of Order XXIII Rule 1, while omitting to consider sub-clause (b), which pertains to existence of sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.