Between:
HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION No.5902 of 2012 Date:07.11.2014 T.Manimala, W/o Amarender Reddy And S.R.Lingam Counsel for the petitioner: Sri Srinivas Polavarapu Counsel for the respondent: None appeared The Court made the following:
.. Petitioner .. Respondent ORDER:
This Civil Revision Petition arises out of order, dated 12.09.2012, in I.A.No.396 of 2012 in O.S.No.848 of 2008 on the file of the learned Junior Civil Judge-cum-XVIII Metropolitan Magistrate, Cyberabad at Malkajgiri.
I have heard Sri Srinivas Polavarapu, learned counsel for the petitioner. Learned counsel for the respondent is not present.
The petitioner filed the above-mentioned suit for perpetual injunction against the respondent. In respect of the same subject matter, the respondent filed O.S.No.930 of 2008 against the petitioner for a similar relief. Both the suits appeared to have been clubbed together and a joint trial is stated to be ordered.
Having regard to the stand taken by the respondent that the petitioner is not in physical possession of the suit schedule property, the petitioner has initially filed I.A.No.1159 of 2011 for amendment of plaint for seeking the relief of declaration of title and recovery of possession of the suit schedule property. The said application was stated to have been dismissed by the lower Court on the ground that the same was filed belatedly. Left with no other option, the petitioner has filed I.A.No.396 of 2012 under Order XXIII Rule-1 (1) of the Code of Civil Procedure for permission to withdraw her suit with liberty to file a fresh suit for declaration of title and recovery of possession. This application has been dismissed by the lower Court by observing that since a joint trial is being conducted in O.S.Nos.848 and 930 of 2008, O.S.No.848 of 2008 filed by the petitioner cannot be permitted to be withdrawn.
The lower Court has, however, made an observation that subject to the law of limitation, nothing prevents the petitioner form filing a fresh suit.
From the above-noted facts of the case, it is evident that the necessity for the petitioner to file a fresh suit has arisen in view of the fact that her application, filed for amendment of the plaint for seeking the relief of declaration of title and recovery of possession, was dismissed by the lower Court. Having dismissed such an application, the lower Court is excepted to have at least permitted the petitioner to withdraw her suit with liberty to file a fresh suit.
As the petitioner has virtually conceded the fact that she is not in possession of the suit schedule property, her suit, i.e., O.S.No.848 of 2008 has virtually become infructuous. Therefore, there is no point in insisting on the petitioner to pursue her suit, wherein the cause ceased to be alive.
In this factual background, mere clubbing of both the above- mentioned suits cannot be a relevant factor for denying permission to the petitioner to withdraw her suit. Even if the suit filed by the petitioner is withdrawn, the lower Court can still adjudicate O.S.No.930 of 2008 filed by the respondent on its own merits.
In my considered opinion, there was no legal impediment for the lower Court to permit the petitioner to file a fresh suit after withdrawing her suit-O.S.No.848 of 2008.
For the above-mentioned reasons, the order of the lower Court is set aside. I.A.No.396 of 2012 is allowed, subject to the legal defences that may have accrued to the respondent to oppose the fresh suit.
The Civil Revision Petition is, accordingly, allowed.
As a sequel, interim order, dated 11.09.2014, is vacated and CRPMP.No.7853 of 2012, filed by the petitioner for interim relief, is disposed of as infructuous.
(C.V.NAGARJUNA REDDY, J)
07th November 2014
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