THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3799 of 2010 January 20, 2011 Between: T.Bhagya Lakshmi, W/o.V.Padmanabhan And other ...Petitioner AND P.Subramanyam Reddy, S/o.P.Chenga Re;ddy And others ...Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3799 of 2010 ORDER: The respondent herein filed O.S.No.412 of 2003 on the file of the Court of the Additional Senior Civil Judge, Tirupati, for declaration of title and recovery of possession. The petitioner herein is the defendant. The suit was coming up for trial. At that stage, the plaintiff filed I.A.No.738 of 2008 under Order VI Rule 17 of the Code of the Civil Procedure, 1908 (CPC) to amend the plaint schedule. The same was dismissed on 21.10.2008. Feeling aggrieved thereby, he filed C.R.P.No.5506 of 2009. This Court dismissed the same on 26.3.2010. While doing so, this Court observed that it shall be open to the respondent “to seek appropriate remedies, if he is so advised, for filing fresh suit by withdrawing the pending suit.” Thereafter the respondent filed I.A.No.579 of 2010 under Order XXIII Rule 1 of CPC seeking permission of the Court below to withdraw the suit with liberty to file fresh suit. The petitioner/defendant opposed the same. Rejecting the objection, the Court below allowed I.A.No.579 of 2010 permitting withdrawal of O.S.No.412 of 2003 with liberty to file a fresh suit. The Court below also referred to the observations of this Court in C.R.P.No.5506 of 2009. In this civil revision petition filed questioning the order dated 01.7.2010 in I.A.No.579 of 2010, the Counsel for the petitioner made the following submissions. The Court below erred in exercising the jurisdiction under Order XXIII Rule 1 of CPC as the conditions envisaged therein are not satisfied. The observations made by the High Court in the earlier civil revision petition are not dehors the provisions of Order XXIII Rule 3 of CPC and, therefore, the same cannot be the basis for allowing the application of the respondents. After perusing the record available before this Court and the impugned order passed by the Court below, this Court does not find any grave error apparent on the face of the record. The law gives a right to the plaintiff to withdraw the suit seeking liberty to file a fresh suit. This does not, however, mean that whatever evidentiary value that may be attached thereto, the pleadings and the evidence if any recorded in the suit that is sought to be withdrawn can always be used as evidence in a subsequent suit. The law does not bar such use. The civil revision petition is filed only on such apprehension that the petitioner would be deprived of the advantage, if any, of the admissions made by the plaintiff’s witnesses. The apprehension is unfounded. The civil revision petition is misconceived and is, accordingly, dismissed. _______________ (V.V.S.RAO, J) January 20, 2011 YS