G ACHANNA Vs. P PRATAP REDDY

JUDGEMENT

(1.) This is a classical case of abuse of process of law. A Suit has been filed by the plaintiff in the year 1995 for specific performance on the basis of an alleged agreement of sale, dated 30th of July 1987. When the plaintiff was being examined as a witness, he tried to exhibit the agreement dated 30th July 1987. Objection was raised by the defendant and on 03.08.1999, the trial Court held that the agreement of sale was in fact, a sale deed, but was unregistered and could not be marked. Thereafter, in the year 2001, the plaintiff filed a review petition with an application for condoning the delay. It was dismissed by the trial Court on 4th of February 2002. Again, a revision was filed in the High Court and the High Court dismissed the revision on 04.12.2003. The High Court was of the view that an order in review could not be challenged in the absence of challenge to the original order dated 03.08.1999. Therefore, the petitioner got another chance to file another revision against the order dated 03.08.1999. This order was challenged in C.R.P.No.583 of 2004. The C.R.P. was dismissed by the High Court on 03.11.2005. The petitioner did not lose heart and went to the Supreme Court and filed S.L.P. in Appeal No.4067 of 2006. The Supreme Court dismissed the appeal on 06.03.2006. After the dismissal of the Appeal in the Supreme Court, the petitioner again tried to abuse the system of law by making an application in I.A.No.24 of 2006, seeking amendment of the plaint by substituting the prayer of grant of decree of declaration of his ownership in respect of the suit schedule property in place of the prayer for specific performance of agreement dated 30th July 1987. This application was again dismissed by the trial Court on 19.04.2006. Again, a revision was filed in C.R.P.No.2353 of 2006. The High Court dismissed the C.R.P. on 30th of June 2006. After the High Court dismissed this revision, the plaintiff could not take it in his stride the chances of losing the suit. Therefore filed the present application stating therein that in view of the orders passed by this Court and upheld by the High Court and Supreme Court, the document dated 30.07.1987 could not be marked in evidence and therefore, there was no chance of succeeding in the suit. He sought permission of the Court to withdraw the suit and file a fresh suit in respect of the subject matter of the suit.

(2.) The machinations of the petitioner have been pointed out hereinabove and the facts, as narrated hereinabove, do not need any further discussion to show how the process of law has been tried to be subverted by the petitioner over a period of one decade. Order 23 of C.P.C. deals with withdrawal and adjustment of suits and sub-rule (1) lays down that at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, abandon his suit or abandon a part of his claim. Sub-rule (3) lays down-

(3.) The present application does not fall under Order 23, Rule (1)(3)(a) of C.P.C, as no formal defect in the present suit is pointed out. It was tried to be shown that there were sufficient grounds for allowing the petitioner to institute a fresh suit for the subject matter of a suit or part of a claim. I have already noted down the contents of the application moved by the petitioner. In the application, he has only stated that there are chances of losing the present suit by him, therefore, he wants to file a fresh suit. He contested over a period of ten years on the admissibility of a document and after ten years, he does not want to rely on the document but wants to file a fresh suit. It was not even pointed out in the application as to what type of a suit he would file after the present suit is allowed to be withdrawn. But if one has some idea from the application he moved earlier for amendment of the suit, he might, at best, file a suit for declaration. Again, the declaration would be based on the agreement which had been held not admissible in evidence and the suit for declaration cannot be allowed to be filed in view of the fact that the petitioner had earlier moved an application for amendment in the present suit, which was dismissed and that order has also become final. There is another reason for my not to interfere in the order of the trial Court and that is the conduct of the petitioner throughout, which has been pointed out hereinabove. This conduct must be and should be taken into consideration for the purposes of grant or refusal of a discretionary relief. Discretion under Order 23 Rule (1)(3)(b) of C.P.C. can be exercised by the Courts when there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. In the present case, no sufficient grounds have been even pleaded. The petitioner has an apprehension that he will fail in the present suit and failure in a suit cannot be the sole ground on which the discretion by the Court can be exercised under Order 23 Rule (1)(3)(b).