* THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY + Civil Revision Petition No.327 of 2011 % DT.15.04.2011 # Mohammad Gaffur …Petitioner Vs. $ Uppada Madayya and another … Respondents ^ Counsel for the Petitioner: Sri K.Manik Prabhu ! Counsel for respondents: Sri P.Ponna Rao for Sri K.S.Murthy < Gist: > Head note: ? Cases referred: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Civil Revision Petition No.327 of 2011 Dated 15th April, 2011 Between: Mohammad Gaffur …Petitioner And Uppada Madayya and another …Respondents Counsel for the petitioner: Sri K.Manik Prabhu Counsel for respondents: Sri P.Ponna Rao For Sri K.S.Murthy The Court made the following: ORDER: This civil revision petition arises out of order, dated 30.12.2010, in I.A.No.172 of 2010 in O.S.No.9 of 2005 on the file of the learned Junior Civil Judge, Ichapuram. The petitioner is the plaintiff in O.S.No.9 of 2005, which was filed for permanent injunction restraining the respondents from interfering with his possession of the suit schedule property. During the pendency of the suit, he filed I.A.No.190 of 2009 seeking permission to amend the plaint for adding the reliefs of mandatory injunction, directing the respondents to remove the permanent structures constructed over the suit schedule property and recovery of possession. The said IA was dismissed on 28.06.2010. Thereafter, the petitioner filed the present application i.e., I.A.No.172 of 2010, seeking permission to withdraw the suit with liberty to him to file a comprehensive suit for declaration of title, injunction and recovery of possession. The said IA having been dismissed, he filed the present civil revision petition. I have heard Sri K.Manik Prabhu, learned counsel for the petitioner, and Sri P.Ponna Rao, learned counsel representing the respondents. In the order under revision, the Court below has observed that the averment of the petitioner that the respondents have raised constructions during the pendency of the suit is incorrect, in view of his oral testimony given as PW.1 to the effect that the respondents have occupied the mosque place and demolished some part of the mosque and laid foundation, that thereafter the suit was filed and that at the time of filing injunction petition, house was constructed at the place where the mosque was located and the doors and windows were not fixed and flooring was not laid. The Court below referred to Order XXIII Rule 1 of CPC and held that unless there is a formal defect in the suit, permission for its withdrawal with liberty to file a fresh suit cannot be granted. In my opinion, the Court below has not properly considered the application from its true perspective. When the petitioner made his application for amendment of the suit, the same was dismissed obviously on the ground that the proposed amendment would completely change the nature of the suit. Having thus disallowed the petitioner to claim comprehensive relief by way of an amendment, it would be wholly unjust and iniquitous to deny permission to him to withdraw the suit with liberty to file a comprehensive suit. The Court below has not considered one of the two grounds on which a suit can be permitted to be withdrawn with liberty to institute a fresh suit. It has merely referred to sub-clause (a) of clause (3) of Order XXIII Rule 1, while omitting to consider sub-clause (b), which pertains to existence of sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. From the facts pleaded by the petitioner, it cannot be held that sufficient grounds have not existed for him to file a fresh suit after withdrawing the present suit, as earlier suit was filed only for an injunction simplicitor, while the proposed suit is for grant of multiple reliefs. Even if the observation of the Court below that the mosque was demolished and a foundation was laid at the time of filing the suit was correct, that by itself would not constitute a ground to reject the request of the petitioner to file a comprehensive suit by withdrawing the present suit. For the above-mentioned reasons, the order under revision petition cannot be sustained and the same is accordingly set aside. Since filing of fresh suit would result in causing additional expenditure to the respondents, apart from consumption of further time in litigation, it would be appropriate that the petitioner reasonably compensates the respondents in this regard. Accordingly, the civil revision petition is allowed on condition of the petitioner paying to the respondents- defendants Rs.1,500/- (Rupees one thousand five hundred only) each towards costs. Subject to payment of the costs within one month, I.A.No.172 of 2010 is allowed. As a sequel to disposal of the civil revision petition, the interim order, dated 04.03.2011, granted by this Court, shall stand vacated and C.R.P.M.P.No.462 of 2011 is disposed of as infructuous. C.V.NAGARJUNA REDDY, J 15th April, 2011 Note: LR copies to be marked. (b/o) VGB