R. S. A. No. 867 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 867 of 2009 (O&M) Date of Decision : July 20, 2010 Jai Narain .... Appellant Vs. Haryana Urban Development Authority (HUDA), Hisar and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sudhir Mittal, Advocate for the applicant-appellant. Mr. Gaurav Mohunta, Advocate for non-applicant – respondent no.1. * * * L. N. MITTAL, J. (Oral) : C. M. No. 12159-C of 2009 : Jai Narain plaintiff, having partly lost in both the courts below, has filed the instant second appeal. Even before notice of motion could be issued in the instant second appeal, appellant moved the instant application under Order 23 Rule 1(3) of the Code of Civil Procedure (in short – CPC) for permission to withdraw the suit, with liberty to file a fresh one relating to same subject matter. The said application is being disposed of by this order. R. S. A. No. 867 of 2009 (O&M) 2 Plaintiff sought permanent injunction restraining defendant – respondent no.1 (HUDA) from interfering in ownership and possession of the plaintiff and proforma defendants nos. 2 to 6 over the suit land comprising of khasra no.801. This part of the relief claimed has been decreed. However, the plaintiff also sought mandatory injunction directing defendant no.1 to remove encroachment made by it on the suit property by raising construction of a wall and barbed wire fencing. The plaintiff also claimed further mandatory injunction directing defendant no.1 to open access to suit land from the adjoining thoroughfare on the West. Relief of mandatory injunction has been declined to the plaintiff by the courts below. Appellant has alleged in the instant application that thoroughfare lying on the West of the suit property is the only approach to the suit property and therefore, the plaintiff has to seek relief of easement of necessity, which could not be pleaded or sought in the instant suit. On this ground, the appellant seeks permission to withdraw the suit, with liberty to file a fresh one relating to same subject matter. The application has been opposed by counsel for respondent no.1 without filing any formal reply. I have heard learned counsel for the parties and perused the case file. As noticed herein above, applicant-appellant has already lost in both the courts below relating to relief of mandatory injunction for access R. S. A. No. 867 of 2009 (O&M) 3 through alleged thoroughfare on Western side of the suit property. The very existence of the said thoroughfare has not been proved. In second appeal, the plaintiff-appellant cannot be permitted to withdraw the suit, with liberty to file a fresh one, without there being sufficient ground for the same. Learned counsel for the applicant-appellant contended that by granting necessary liberty to the plaintiff, defendant no.1 would not suffer any prejudice, whereas on the other hand, if the plaintiff is not granted necessary liberty, he would not be able to utilize his suit property. The contention cannot be accepted. In the case of K. S. Bhoopathy and others vs. Kokila and others reported as (2000) 5 Supreme Court Cases 458, Hon'ble Supreme Court held that merely stating that defendant will not be prejudiced by granting of permission is not sufficient compliance with the statutory mandate of Order 23 Rule 1 (3) CPC. It was also held that when such permission is granted at the first or second appellate stage, prejudice to the defendant is writ large because he loses the benefit of the decision in his favour by the lower court. In that case, the plaintiffs claimed exclusive user of the pathway between their property and the property of defendants. First appellate court held the pathway to be common. After filing second appeal, the plaintiff sought withdrawal of the suit, with liberty to file a fresh suit to seek declaration of title over the pathway. It was held to be impermissible. In the instant case, the plaintiff is on a worse footing and necessary permission to withdraw the suit, with liberty to file fresh one, cannot be R. S. A. No. 867 of 2009 (O&M) 4 granted at the stage of second appeal. It would necessarily result in prejudice to the contesting respondent no.1. In addition to the aforesaid, the very basis for filing the application that there is no other access to the property of the plaintiff is falsified by the material on record. In the boundaries of the suit property pleaded by the plaintiff himself, in addition to the alleged thoroughfare on the West, it is also mentioned that there is street and house on the East. It is thus manifest that plaintiff has access to his suit property from the street located on East thereof. Consequently, it cannot be said that there is no access to the suit property of the plaintiff except from the alleged thoroughfare on the West or that the suit property cannot be utilized without the Western thoroughfare. For the reasons recorded herein above, I find no merit in the instant application, which is accordingly dismissed. Main Appeal : As noticed herein above, the plaintiff has lost in both the courts below regarding relief of mandatory injunction pertaining to alleged thoroughfare on the West of the suit property belonging to the plaintiff and proforma defendants no.2 to 6. There is concurrent finding by both the courts below that property lying on West side of the suit property of the plaintiff belongs to defendant no.1 and that plaintiff has no right, title or interest in the said Western property. The existence of alleged R. S. A. No. 867 of 2009 (O&M) 5 thoroughfare in the said property on the West side of the suit property is also not proved. The aforesaid finding is based on appreciation of evidence. The said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. On the contrary, as noticed herein above, the plaintiff has street on Eastern side of the suit property for access to the suit property. Consequently, it cannot be said that plaintiff has no passage for access to the suit property. For the reasons recorded herein above, I find no merit in the instant second appeal. The appeal is accordingly dismissed. July 20, 2010 ( L. N. MITTAL ) monika JUDGE