THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED C.R.P.Nos.1737 and 1738 of 2010 COMMON ORDER: At the request of both the learned counsel, these revisions are taken up together for disposal since the common issue is involved. 2. The petitioner herein filed O.S.No.1503 of 2004 on the file of the Principal Senior Civil Judge, Visakhapatnam, for declaration and permanent injunction against the first defendant, who died pending the suit and therefore, his legal representatives were brought on record. After completion of trial and arguments, the said suit was posted for judgment on 05.11.2007. At that stage, both the parties have filed petitions to reopen the matter for recall of P.W.1 and D.W.1 and that when the matter was reopened for cross-examination of P.W.1, the petitioner filed I.A.No.1652 of 2008 under Order XXIII Rule 1 CPC seeking to permit him to withdraw the suit with liberty to file a fresh suit by taking all necessary pleadings and by impleading necessary and proper parties. Through the Order, dated 24.02.2009, the said application was disposed of by the trial Court holding that the application was filed at the fag end of trial, that too, at the stage of arguments, which is absolutely improper and unfortunate, but, however, the petitioner is at liberty to withdraw the suit at any point of time, and accordingly, it declined to grant him liberty to file a fresh suit against the defendant and third parties. Consequently, the trial Court dismissed the suit with costs on the same date. Aggrieved by the dismissal of the suit and not granting him liberty to file a fresh suit, the petitioner filed C.R.P.Nos.1738 and 1737 of 2010 respectively. 3. Heard both sides and perused the material on record. 4. Learned counsel for the petitioner submitted that inasmuch as after filing the Commissioner’s report and after completion of trial, it is noticed that the owner of plot No.95 is interfering with the suit property in plot No.96, the petitioner intends to withdraw the suit for filing a fresh suit including the owner of plot No.95. He contended that though the trial Court disposed of the application on 24.02.2009, without granting him liberty to file a fresh suit, it ought not to have dismissed the suit on the same date without giving him an opportunity of being heard. He relied upon the judgment of this Court in PILLAKATHUKU SUBBARATHNAM v. EXECUTIVE OFFICER, POLATHATA MALLESWARASWAMY TEMPLE, GANGANAPALLY VILLAGE, KADAPA DISTRICT[1] wherein it was held as under: “The words, “it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with a liberty to institute a fresh suit” would assume some importance. It is clear that it is within the discretion of the Court either to permit the withdrawal or to refuse the withdrawal. It is no doubt true that having permitted to withdraw, refusal of liberty to institute another suit may not be justified. “The expression ‘sufficient grounds’ may have to be considered liberally depending upon the facts and circumstances of a given case. In the light of the reasons which had been stated in the affidavit filed in support of the application and also in view of the change of counsel and advice given by him, and further taking into consideration that the suit is yet to be commenced, the learned Judge could have allowed the application instead of dismissing the same. The result of the dismissal of the application is that the plaintiffs may have to be proceeded with the suit further. Instead, in view of the peculiar facts and circumstances when specific ground had been taken relating to the defective pleading and defective reliefs prayed for, this Court is of the considered opinion that it would be just and proper to permit the revision petitioners to withdraw the present suit with a liberty to institute a fresh suit, if so advised in relation to the subject matter of the suit or to the part of the claim of the said suit”. He also relied upon the decision of the Apex Court in K.S.BHOOPATY v. KOKILA[2] wherein it was held as under: “The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of the cases”. 5. Learned counsel for the respondents contended that at the stage of pronouncement of judgment in the suit, which is of the year 2004, the petitioner with an intention to drag on the proceedings, filed the petition to withdraw the suit based on the report of the Commissioner, which was filed in 2005. He further contended that the petitioner can as well implead the owner of plot No.95 in the suit and there is no need to withdraw the present suit. He also contended that the Court below has recorded sufficient reasons while disposing of the I.A. and consequently, dismissed the suit and that if the petitioner files a fresh suit with the same cause of action, it will lead to multiplicity of litigation. He has drawn the attention of this Court to the judgment reported in AMALGAMATED ELECTRICITY COMPANY LID v. KUTUBUDDIN RAJESAHEB CHANCHA[3] wherein it was held as under: “If an application under sub-rule (2) is heard on merits and at the conclusion, the Court is not satisfied that circumstances exist justifying the grant of permission to withdraw with liberty to file a fresh suit, the Court could proceed to dismiss the application, in which case the suit remains on file. If such is the consequence of an actual adverse order made by the Court on an application, I do not think the plaintiff can be placed in a worse situation by stating that the application must be regarded as one under sub-rule (1) and therefore, incapable of being withdrawn, or as having the immediate result of withdrawing the suit. It will be seen that in such an event, the plaintiff not only loses the right of filing a fresh suit but also loses even the possibility of getting such relief as he may be in a position to get in the existing suit.” 6. As it is stated by the petitioner in his affidavit in I.A. that in the written statement, the first defendant stated that he is in possession and enjoyment of the property covered by plot No.97 and the owner of plot No.95 had encroached the suit property of the petitioner, the trial Court appointed an Advocate Commissioner to localize and measure plot Nos.96 and 97 with reference to the respective sale deeds of plaintiff and defendant. Accordingly, the Commissioner submitted his report on 14.11.2005. Thereafter, the trial of the suit was completed, arguments were heard and the suit was posted for pronouncement of the judgment. At that stage, the petitioner noticed that one Smt Avanigadda Lakshmi, who is the owner of plot No.95, is interfering with his right and title in plot No.96 and therefore, he filed I.A. under Order XXIII Rule 1 CPC seeking to withdraw the suit with liberty to file a fresh suit by taking all necessary pleadings and also by impleading necessary and proper parties. Order XXIII Rule 1 CPC reads as under: Withdrawal of suit or abandonment of part of claim—(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Rule 3 of the said order reads as under: (3) Where the Court is satisfied,- (a) That a suit must fail by reason of some formal defect, or (b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. The above said Rule clearly postulates that the plaintiff at any time after institution of a suit may withdraw it. But, the trial Court having permitted the petitioner to withdraw the suit, refused to grant him liberty to institute a fresh suit, which cannot be justified, as held by this Court in PILLAKATHUKU SUBBARATHNAM’s case cited 1 supra. 7. The petitioner filed the suit for declaration of plaint schedule property i.e., plot No.96 and consequential relief of permanent injunction against the defendants, the owners of plot No.97. As per the plaint schedule, plot No.95 is situated on west of the plaint schedule property. The report of the Commissioner shows that in part of plot No.96, there is a RCC slabbed building belonging to Smt A. Lakshmi. Taking into account the same, the petitioner asserted that the owner of plot No.95 had encroached the suit property and therefore, he wanted to file a fresh suit against the said owner apart from the defendant. As per the report of the Commissioner, the owner of plot No.95 constructed RCC building in part of plot No.96. The suit filed by the petitioner/plaintiff against the respondents/defendants was dismissed by the impugned judgment and the plaintiff has not given liberty to file a fresh suit against the owner of plot No.95. Therefore, by virtue of the impugned orders, the very purpose of filing the suit against the defendants is defeated and he lost his liberty to file a suit against the owner of plot No.95. Further, the trial Court has not given cogent reasons for dismissal of the said suit and not granting liberty to the petitioner to file a fresh suit. Therefore, I deem it appropriate to set aside the impugned orders and to remit the matter for reconsideration. 8. Both the civil revision petitions are accordingly allowed. No order as to costs. ______________________ GHULAM MOHAMMED, J Date: 23.07. 2010 sj [1] 2005-ALT-4-423 [2] (2000) 5 SCC 458 [3] AIR 1970 MYSORE 155