THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.4167 of 2010 O R D E R: The Civil Revision Petition is directed against the order in I.A.No.857 of 2010 in O.S.No.408 of 2005 on the file of the Principal Junior Civil Judge’s Court, Sangareddy dated 30.06.2010. The plaintiffs in O.S.No.408 of 2005 filed the application under Order XXIII, Rule 1 of the Civil Procedure Code to permit them to withdraw the suit with a liberty to file a fresh suit on the ground that in the suit for permanent injunction in respect of Ac.8.30 guntas of the suit schedule property, the defendants raised a boundary dispute in their written statement and I.A.No.1562 of 2007 filed by the plaintiffs for the appointment of an Advocate Commissioner to demarcate the boundaries of the suit land was dismissed by the Court. The plaintiffs also filed I.A.No.1480 of 2009 for amending the prayer in the suit as demarcation of the boundaries of the suit land became necessitated due to the pleas raised in the written statement. But the same was also dismissed by the Court on 19.01.2010. The plaintiffs, therefore, desired to withdraw the suit with liberty to file a fresh suit impleading all the necessary parties and praying for all the necessary reliefs with reference to the questions in issue between the parties. The respondents/defendants opposed the request contending that the plaintiffs filed a rejoinder to the written statement admitting the conversion of the suit land into residential plots in 1996 and sale of some plots to various persons by them. The plaintiffs attempted to drag on the matter after commencement of trial by filing applications for appointment of an Advocate Commissioner and for amendment of the plaint, which were rightly dismissed and as the plaintiffs knew that the suit will fail in case of cross examination of PW.1, this application was filed to protract the litigation. The trial Court considered the rival contentions and noted that the plaintiffs claimed possession of the suit land on inheritance from their father Nagi Reddy while the defendants contended that the suit land was not agricultural land as on the date of the suit and was the subject of a lay out approved by the gram panchayat in which the plaintiffs sold some plots to various persons. The trial Court also noted that in the rejoinder the plaintiffs claimed the lay out to be in accordance with their physical possession and the rejoinder was noted to mainly cover the contentions about Ac.1.33 guntas in S.No.132-AA claimed by the defendants to be in their possession claiming to be not the suit land. The trial Court also observed that neither party claimed title while both of them denied the possession of the other. Referring to Order XXIII Rule 1 Sub Rule 3 of the Civil Procedure Code, the trial Court felt that a permission can be granted to withdraw a suit, only when the plaintiff could show that the suit would fail by reason of some formal defect or that there are sufficient grounds for allowing him to institute a fresh suit after withdrawal. The trial Court was of the opinion that the plaintiffs did not allege any formal defect in their suit and also failed to state sufficient grounds for grant of permission. The dismissal of the interlocutory applications filed by the plaintiffs was considered by the trial Court to be not leading to any formal defect disabling the plaintiffs from proceeding with the suit and as the plaintiffs have neither asserted their possession over the suit land nor given the details of the lands sold by them, the trial Court was not satisfied with the request and dismissed the application without costs. The plaintiffs filed the revision contending that the suit for perpetual injunction simplicitor was found to be suffering from technical lacunae, not covering the questions in issue about the determination of the boundaries and impleadment of proper and necessary parties, during the course of the proceedings in the suit and therefore the plaintiffs considered that a fresh comprehensive suit is called for to establish their rights over the suit land. The trial Court ought to have considered the legal obstacles for the plaintiffs in indicating their rights in the present suit and ought to have granted the permission. Sri B.Nalinkumar, learned counsel for the revision petitioners has strenuously contended that the raising of the boundary dispute by the defendants, the contentions of the parties showing involvement of the rights and interests of persons who are not added as parties to the suit, the refusal of the trial Court to permit amendment of the plaint to seek the necessary reliefs in this suit itself and the denial of an opportunity to the plaintiffs to have the boundaries demarcated through an Advocate-Commissioner necessitated the present request of the plaintiffs and the same ought to have been considered under the enabling provision. Though the respondents filed a caveat in the matter through a learned counsel and the learned counsel for the caveators was served with the papers of the revision, none appeared on behalf of the respondents on the dates of hearing forcing the Court to proceed to decide the matter on merits and the respondents did not avail the opportunity of hearing given to them. The point for consideration is whether the trial Court should have permitted the plaintiffs to seek withdrawal of the suit with liberty to file a fresh suit. Order XXIII Rule 1 of the Civil Procedure Code provides for withdrawal of suit or abandonment of part of claim and under Sub Rule 3 of Rule 1, the satisfaction of the Court about the possible failure of suit by reason of some formal defect or the 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 are made preconditions for grant of permission to a plaintiff to withdraw the suit on such terms as the Court thinks fit with liberty to institute a fresh suit in respect of the same subject matter or part of it. While it is well settled that the provisions of the Rule based on public policy are not for giving an opportunity to a litigant to abuse the process of the Court or to defeat accrued rights of the other party, the judicial discretion vested in the Court will be exercised only if sufficient ground is shown warranting such a permission in the interests of justice. While it should be remembered that rules of procedure are intended to be handmaids of justice and not to punish the parties for any technical lapses, the express and inherent powers of the Civil Court were always held to be designed to advance real and substantial justice between the parties. In the present case, it is seen that the suit was filed for a permanent injunction simplicitor solely on the basis of interference with the alleged possession of the plaintiffs by the defendants and it was the defence in the written statement about the sale of some part of the land by the plaintiffs to some third parties that gave rise to the possible necessity of determination of the questions in issue concerning the suit property in the presence of the alleged purchasers of the property. Even in respect of the land in S.No.132/ AA claimed by the plaintiffs in the suit to have already been sold by the defendants prior to the suit, the third parties and purchasers in possession were not made parties to the suit and in view of the various contentions raised in the written statement of the defendants, probably it would have become proper if not necessary to have such third parties referred to in the plaint and written statement also on record in the suit before determination of the rights of any persons in the suit land. The written statement also raised the question of identity of the property and the boundaries with reference to the earlier litigation in O.S.No.91 of 1986 on the file of the District Munsifs Court at Sangareddy etc., and whether the suit is a disguised attempt to grab the land of the defendants also is a question which could have been probably effectively gone into only on determination of the identity of the respective lands on land through an independent agency like an Advocate- Commissioner. On both the aspects, the plaintiffs made an effort to have reliefs from the trial Court in I.A.No.1480 of 2009 and I.A.No.1562 of 2007 respectively and in both they failed. While the orders in I.A.No.1480 of 2009 and 1562 of 2007 are not the subject of this Court’s consideration, the result of those interlocutory applications is relevant to the extent of corroborating the claim of the plaintiffs that the suit as framed for a permanent injunction simplicitor suffers the likelihood of failure on the ground of inappropriateness of the reliefs claimed as well as inadequacy of the parties before the Court and under such circumstances, plaintiffs cannot be considered to be unjustified in making a request for permission to withdraw the suit with liberty to file a fresh suit. On the very contentions of the defendants, the defendants cannot prevent the plaintiffs from making such a request nor did any rights accrue to the defendants due to lapse of time in between the institution of the suit and the request for withdrawal. The judicial discretion vested in the trial Court under Order XXIII Rule 1 could not therefore be considered to have been exercised in accordance with law in refusing the permission for withdrawal and sufficient grounds do exist for grant of such permission. While the proceedings in O.S.No.408 of 2005 or any observations made by the trial Court in any proceedings therein or the observations in this order should have no bearing on the merits of the rival contentions and decision on merits of any proceedings to which the parties may take recourse to in respect of the subject matter of the suit, the permission requested for should be granted subject to such caveat. Accordingly, the order dated 30.06.2010 in I.A.No.857 of 2010 in O.S.No.408 of 2005 on the file of the Principal Junior Civil Judge’s Court, Sangareddy is set aside and the said I.A.No.857 of 2010 is allowed without costs. Accordingly, the Civil Revision Petition is ordered without costs. _____________________ G.BHAVANI PRASAD,J 29th October, 2010. PNV