IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIRST DAY OF OCTOBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3286 of 2011 Between: A. Bharathi .. Petitioner AND Ahmadunissa Begum & 5 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3286 of 2011 ORDER: Heard Sri M. Damodar Reddy, learned counsel for the revision petitioner and Sri K. Sarvabhouma Rao, learned counsel for respondents 3 to 6. The first respondent is no more, whose legal representatives are respondents 3 to 6 and the second respondent is stated to be not a necessary party to the civil revision petition. 2. The civil revision petition is directed against the order in I.A.No.327 of 2011 in O.S.No.250 of 2000, on the file of the Junior Civil Judge’s Court, Mahabubnagar, dated 15.07.2011. 3. The said I.A.No.327 of 2011 was filed by the plaintiff stating that after the filing of the suit for declaration about the suit area being a public road and for a consequential permanent injunction, the original defendant constructed a house on the suit area. While the plaintiff admitted the construction of the house in her evidence on commencement of trial after four years after the suit, she applied for amendment of the plaint for relief of mandatory injunction which was dismissed by the trial Court and the High Court. Consequently, the suit has to be withdrawn with permission to file a fresh suit on the same cause of action. The request was opposed by respondents 3 to 6 contending that after the admission of P.W.1 in her evidence that the suit was filed after the constructions were made by the first defendant, the allegations now made are untenable, more so, after the refusal of the trial Court and the High Court to allow any amendments of the plaint. The filing of the petition after lapse of 11 years after the suit was, hence, contended to be not on valid grounds as there was no formal defect in the suit to enable permission to withdraw the suit. 4. The trial Court, in the impugned order, referred to SOMALRAJU VS. SAMANTHU SIVAJI GANESH AND ANOTHER[1], wherein a petition for withdrawal after the closure of the evidence on the ground of any formal defect was held to be not maintainable. The trial Court also noted that no steps were taken by the plaintiff to take any action for disobedience of the temporary injunction in force since 2000 and the petition, filed at the stage of arguments, is not maintainable. 5. The point for consideration is whether the rejection of the request of the plaintiff to withdraw the suit with liberty to file a fresh suit is justified. 6. In SOMALRAJU’s case (supra 1), a learned Judge of this Court was considering a similar request on the ground of a formal defect in the suit and found, on facts, that the plaintiff failed to specify the formal defect. The learned Judge also noted number of admissions in the cross-examination of the witnesses on behalf of the plaintiff, which were intended to be nullified by withdrawing the suit. As the plaintiff therein could not specify the formal defect which is likely to lead to dismissal of his suit or any other sufficient grounds for permitting him, the learned Judge negatived the request therein. 7. In the present case, admittedly, the construction of the house in the suit area shown as “ABCD” in the plaint sketch made the suit for a mere declaration and permanent injunction in respect of the said property claimed to be a public road practically purposeless as either any declaration of the nature of the property or any prohibitory injunction would not have been sufficient for restoration of the suit area as a public road, even if the plaintiff succeeded in establishing the truth and enforceability of her claims in respect of the said suit area. Irrespective of the admissions of P.W.1 about the constructions made by the deceased first defendant being prior to or after the suit, even if the suit were to be filed during the progress of the construction being made, the reliefs claimed would not have been in any manner implementable for the use of the suit area, once the construction came up, without the necessary reliefs for the removal of such constructions and restoration of the suit area to the original state. The plaintiff attempted to amend the plaint by seeking the relief of a mandatory injunction, but he failed before the trial Court and this Court in such an attempt, therefore, making the suit susceptible to failure by reason of the defect in the relief sought which can also be construed to be a formal defect or at least to be a sufficient ground for allowing the plaintiff to withdraw from the present suit with liberty to file a fresh suit. 8. The conclusion of the trial Court is influenced by the rejection of the request for amendment of the plaint earlier, the inaction of the plaintiff in complaining to the Court about violation of the interim injunction and the delay in making the request for withdrawal, which do not appear to be relevant grounds for rejecting the request of the plaintiff within the meaning of Order XXIII Rule 1 (3) of the Code of Civil Procedure, 1908. Therefore, the trial Court obviously failed in exercising jurisdiction vested in it in spite of there being sufficient grounds for the request of the plaintiff and, hence, the impugned order has to be reversed. 9. Accordingly, the order in I.A.No.327 of 2011 in O.S.No.250 of 2000, on the file of the Junior Civil Judge’s Court, Mahabubnagar, dated 15.07.2011, is set aside and the said I.A.No.327 of 2011 is allowed granting leave to the plaintiff/petitioner to withdraw the suit with liberty to file a fresh suit concerning the subject matter of the suit. The Civil Revision Petition is allowed, accordingly, without costs. ___________________ G. BHAVANI PRASAD, J Date: 21st October, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3286 of 2011 Date: 21st October, 2011 KL [1] AIR 2009 ANDHRA PRADESH 12