This is an application filed by the petitioner, who is the first respondent in the second appeal under Order 23 Rule 1 of the Code of Civil Procedure, for permission to withdraw the suit with liberty to approach the appropriate forum for appropriate relief.
2. It is alleged in the petition that suit O.S.No.167/1992 was filed by the petitioner before the Sub Court, Ottappalam for prohibitory injunction and mandatory injunction in respect of plaint 'A' and 'B' schedule properties. Plaint 'A' schedule property was acquired by first defendant in the suit, who is the second respondent herein and it was handed over to the petitioner on 12.04.1991 as requested by the appellant for the purpose of conducting a quarry as an industry. The suit after trial was dismissed by the Sub Court and an appeal was preferred before the District Court, Palakkad as A.S.No.150/1998 and the first appellate court allowed the appeal and granted the decree as I.A.No.1287 of 2017 in S.A. No.521 of 2001 3 prayed for. Dissatisfied with the decree and judgment passed by the first appellate court, the second defendant in the court below filed this appeal.
3. During the pendency of the appeal, there was some change of circumstances and even if the decree is to be implemented, according to the plaintiff, they could not conduct the quarry as no permission can be granted for that purpose. So there is no purpose in proceeding the case and the prayer in the suit has become infructuous and so they want to withdraw the suit with liberty to approach the appropriate authorities for appropriate relief in accordance with law.
4. The counsel for the first respondent had no objection for the same.
5. The counsel for the second respondent in the petition submitted that, the prayer in the petition is to approach the appropriate authority including the appellant who is the second respondent in the petition, which according to the learned counsel will be barred by limitation.
6. No permission can be granted to the petitioner to file a fresh suit on the same cause of action as the cause of action alleged in both the cases are different and the cause of action for filing the suit is I.A.No.1287 of 2017 in S.A. No.521 of 2001 4 not available to the petitioner now. Even according to the petitioner the prayer has become infructuous and implementation of the arrangement between the parties could not be possible on account of change of circumstances later occurred. The plaintiff being the master of the suit, they can withdraw the suit at any time with liberty to file a fresh suit or approach the appropriate authorities for other remedies if any available in the event of non-implementation of the project which they have undertaken, which has become frustrated on account of subsequent events. So under such circumstances, this court feels that the petition has to be allowed with liberty to file fresh suit for other remedies if any available in accordance with law.
So the petition is allowed and permission is granted to the petitioner to withdraw the suit O.S.No.167/1992 of Sub Court, Ottappalam with liberty for them to approach the appropriate authorities for other reliefs if any available in accordance with law.
(K. Ramakrishnan, Judge) ss I.A.No.1287 of 2017 in S.A. No.521 of 2001 5 I.A.No.1287 of 2017 in S.A. No.521 of 2001 6