JAJALA NARAYANA REDDY Vs. K MOHAN REDDY

JUDGEMENT

(1.) Plaintiff in O.S. No.133 of 1998 on the file of Junior Civil Judge, Kalwakurthy intended to withdraw the suit. He filed LA. No.38 of 2004 under Order XXIII, Rule 1 C.P.C. for this purpose. The Trial Court, through its order dated 21.7.2004, directed the defendants in the suit to remove the wall said to have been constructed by the plaintiff during the pendency of the suit. It also refused the leave to the plaintiff to file a fresh suit on the same cause of action; and ultimately dismissed the suit as withdrawn with costs. Feeling aggrieved by the observations made and conditions imposed by the Trial Court, the plaintiff filed this civil revision petition.

(2.) The suit was filed by the petitioner herein for the relief of perpetual injunction against the respondents. He filed LA. No.38 of 2004 stating inter alia that in view of the report submitted by the Commissioner appointed by the Court, with the assistance of Deputy Director of Survey and Land Records, he no longer intends to proceed with the suit and sought permission to withdraw it, with liberty to file fresh suit on the same cause of action or any cause of action that may arise after the date of Commissioner's report viz., 10.7.2003. The respondents filed a counter-affidavit resisting the application. According to them, the petitioner has undertaken certain constructions in the suit schedule property on the strength of an order of temporary injunction obtained in the suit and he cannot be permitted to withdraw the suit abruptly. They also pleaded that they incurred an expenditure of about Rs.20,000/- to defend themselves and that the petitioner be required to make good the same. The Trial Court passed an order as mentioned above.

(3.) Learned Counsel for the petitioner submits that it is always in the discretion of the plaintiff to withdraw a suit reserving the liberty to file a fresh suit in respect of the subject-matter of the suit and the Trial Court was not justified in making observations and imposing conditions as it did, in the order under revision. He submits that the question of placing any restrictions on such rights arises if only a decree was passed in the suit or subsequent proceedings in the form of appeal etc., have ensued.