B RIZWAN BAIG Vs. M C H

JUDGEMENT

(1.) The praintiff is the petitioner. He filed a suit against the Municipal Corporation of Hyderabad for perpetual injunction restraining the defendants from demolishing a portion of the premises. Pending the suit interim injunction was granted. However, in C.R.P. 1292/87 the petitioner was permitted to continue the plastering, flooring, fixation of shutters, electrical and other sanitary fittings and the like to make the construction habitable. Thereafter an interlocutory application was filed under Order 23, Rule 1 Sub-clause 3 praying to permit the plaintiff to withdraw the suit with liberty to institute a fresh suit which was already filed as O.S. 2404/88 in the Court of the Hnd Asst. Judge, City Civil Court, Hyderabad in respect of the subject matter of this suit. The defendants in the counter filed to the said I.A. averred that notice under Sec. 685 of the Hyderabad Municipal Corporation Act (Act for short) is not necessary prior to the institution of the suit. The petitioner's case was that a suit will fail for the reason of non-issuance of statutory notice. The said I.A. was dismissed stating as under :

(2.) It is this order that is impugned by the plaintiff in this revision contending that the learned Judge erred in dismissing the I.A. seeking permission to withdraw the srit. Filing of a fresh suit cannot be a ground for rejecting the I.A. as it is not necessary that permission to institute a fresh suit must precede any filing of the fresh suit. The case laws sought to be relied on to reinforce the said contentions are as follows :

(3.) In Ammini Kutty vs. George Abraham it svas held as follows: