BIJIVENULA VENKATA SUBBA REDDY Vs. JANGAM SATYA BABU

JUDGEMENT

(1.) THE respondents filed O. S. No. 89 of 2002 in the Court of Junior Civil Judge, Badvel, against the petitioner, for the relief of perpetual injunction, in respect of the suit schedule property. The petitioner, on the other hand, presented a counter- claim, for that very relief. The trial Court dismissed the suit and decreed the counter - claim. .

(2.) THE respondents filed A. S. No. 5 of 2008 in the Court of Additional Senior Civil Judge-cum-Fast Track Court, Rajampet at Badvel. After some time, they filed LA. No. 37 of 2008, under Order XXIII Rule 1 of the Code of Civil Procedure, 1908 (CPC), with a prayer to permit them to withdraw the appeal, without prejudice to the right to file a fresh suit for declaration of title and recovery of possession, in respect of the suit schedule property. The petitioner opposed the application, stating that the valuable rights have accrued to him, on account of the decree passed in his counter-claim and the same cannot be defeated by according permission to the respondents, enabling them to file a fresh suit. Through an elaborate order, dated 15. 7. 2008, the lower Appellate Court allowed the I. A. The same is challenged in this CRP.

(3.) THE respondents failed in their effort to obtain a decree of perpetual injunction, against the petitioner. On the other hand, they suffered a decree of similar nature vis-a-vis the petitioner, in the form of a counter-claim. They preferred an appeal against the decree passed by the trial Court. Instead of proceeding with the appeal, they have chosen to withdraw it, with liberty to file a fresh suit for declaration of title and recovery of possession. Though learned Counsel for the petitioner, initially, raised an objection stating that there is no provision in the C. P. C. , which enables the respondents to withdraw the appeal. He did not proceed beyond a point, obviously on realizing that the procedure that applies to original proceedings would govern the appeals also, unless separate provisions are made, on any aspect.