IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE EIGHTH (8TH) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5333 of 2010 Between: Ch. Srinivas … Petitioner And: M/s Srinivas Enterprise & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5333 of 2010 ORDER: This revision petition is directed against the order dated 25.10.2010 in IA No.1292 of 2010 in OS No.1259 of 2001 on the file of the II Additional Junior Civil Judge, Ranga Reddy district, wherein the said application filed by the petitioner herein under Order XXIII Rule 3 CPC seeking permission to withdraw the suit and to file fresh suit, was dismissed. 2. Heard both sides. Perused the record. 3. The petitioner herein filed suit for perpetual injunction restraining the respondents/defendants from interfering with his possession and enjoyment of the plaint schedule property. The respondents filed written statement and contested the suit. 4. As seen from the impugned order, after full-fledged trial and conclusion of the arguments, the suit has reached the stage of judgment. At that stage, the petitioner filed an application under Order VI Rule 17 CPC for amendment of the plaint, incorporating the relief of declaration of title. The said application was dismissed by the trial Court on 12.07.2010. Thereafter, the petitioner/plaintiff filed the present application on 30.08.010 seeking permission to withdraw the suit under Order XXIII Rule 3 CPC. Admittedly, the provision of law quoted is inappropriate, as the permission to withdraw the suit can be sought under Order XXIII Rule 1 CPC but not under Order XXIII Rule 3 CPC, which deals with compromise. The trial Court dismissed the said application on the ground that the petition lacks bona fides as the same was filed about 9 years after filing of the suit when the matter has reached the stage of judgment. Aggrieved by the same, the plaintiff filed the present revision. 5. According to the petitioner/plaintiff, the suit suffers from a formal defect of want of notice required under Section 126 of the A.P. Cooperative Societies Act (for short ‘the Act’) and the 2nd respondent sold the subject matter of the suit in execution of an award passed against the first respondent and the remedy for the petitioner is to approach appropriate authority. 6. Order XXII Rule 1(3) contemplates that 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, 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. 7. The power granted to the court to permit withdrawal of the suit with liberty to file a fresh suit under the above provision is discretionary. The present suit was filed in the year 2001 with full knowledge that notice under Section 126 of the Act is not issued. However, the plaintiff went for trial, adduced evidence and advanced arguments on conclusion of trial and when the matter reached the stage of judgment, filed the present application seeking withdrawal of the suit about 9 years after filing of the suit. The plaintiff not only seeks to withdraw the suit, but also seeks liberty to file a fresh suit. It is to be noted that the present application is filed after dismissal of the application filed under Order VI Rule 17 CPC for amendment of the plaint by incorporating the relief of declaration of title, which was in fact filed at the stage of arguments. As rightly observed by the trial court, the stage at which the application was filed shows total lack of bona fides on the part of the plaintiff. The plaintiff cannot be permitted to take advantage of his own latches or failure to comply with the statutory requirements. He cannot be permitted to take shelter under the plea that he was ill-advised or misguided. It is hard to believe that the plaintiff has not noticed the absence of statutory notice required to be issued under Section 126 of the Act when the suit is pending for nine years and full-fledged trial has taken place and he could notice it only when the matter reached the state of judgment. When the matter is seized by the court and is about to be disposed of on merits, the plaintiff cannot conveniently choose to withdraw the suit at his will. It is not as though the plaintiff is simply withdrawing the present suit, but he seeks liberty to file fresh suit. The plaintiff cannot be permitted to withdraw the present suit, that too with a liberty to file a fresh suit, simply because, he entertains any apprehension regarding the fate of the present suit. When the plaintiff is aware of the existence of a formal defect, but still he persisted with prosecution of the suit and when the matter is about to reach a logical conclusion after full-fledged trial, the court is justified in refusing to accord permission to withdraw the suit at that stage in exercise of its discretionary power, especially, when the plaintiff seeks liberty to start a fresh round of litigation. 8. In ‘G. Achanna vs. P Pratap Reddy[1]’ this Court held that granting permission to withdraw the suit is a discretionary relief and for grant of such relief, conduct of party be taken into consideration and when the conduct of the party is found to be in the nature of abuse of process of law, dismissal of such application refusing to grant permission is justified. It was further held that apprehension of the plaintiff or failure of the suit cannot be a ground on which the discretion can be exercised by the court under Order XXIII Rule 1(3) CPC. 9. In the present suit, the suit is filed for injunction against both the respondents/defendants. The requirement of notice under Section 126 of the Act can be effective only as against the 2nd respondent-Cooperative Urban Bank, but not against the first respondent. It cannot therefore be said that the suit itself would not be maintainable or that the suit itself suffers from any formal defect. 10. In the circumstances, it is held that the impugned order refusing to grant permission to the plaintiff to withdraw the suit with a liberty to file a fresh suit is based on proper exercise of discretionary power and it does not call for any interference by this court in exercise of the revisional jurisdiction. The trial Court is directed to dispose of the suit on its own merits without in any manner being influenced by any of the observations made herein above. 11. In the result, the civil revision petition is dismissed. No order as to costs. The interim stay granted earlier stands vacated. __________________ G.V.SEETHAPATHY, J Date:08.06.2011 bss [1] 2007(6) ALT 635