IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.4603 of 2011 Between: Smt. Devi @ Saraswathi Bai and another .. Petitioners AND Venkata Rao and others .. Respondents ORDER: The civil revision petition is directed against the order in I.A. No.162 of 2011 in A.S. No.26 of 2009 on the file of the III Additional District Judge (Fast Track Court), Gadwal, dated 29-04- 2011, by which the petition filed by the plaintiffs to withdraw the suit with liberty to file a fresh suit for declaration of title and recovery of possession, was dismissed with costs. 2. The plaintiffs claimed in the interlocutory application that the plaintiffs got title to the subject property only after the death of the 5th respondent who bequeathed the properties to them under a Will and therefore, they want to file a suit for declaration of title and for cancellation of registered sale deeds executed by the 5th respondent during his lifetime and to file further documents and produce further evidence in respect of the same in the new suit. Therefore, they desired that O.S. No.47 of 2006 be permitted to be withdrawn with liberty to file a fresh suit. The contesting respondents questioned the tenability of the request contending that the question of the plaintiffs deriving any title over the properties on the death of the testator did not arise, as the 5th respondent sold his properties to respondents 1 to 4 under registered sale deeds Exs.A.3 to A.5 and as during the lifetime of the 5th respondent there was admittedly no title. 3. The appellate Court considered the request and opined in the impugned order that when the suit was already dismissed after full-fledged trial, the appellate Court has no jurisdiction to pass any order under Order XXIII Rule 1 of the Code of Civil Procedure. It also opined that allowing the petition at that stage will amount to setting aside the judgment and decree passed in the suit and even otherwise there were no satisfactory grounds to permit the plaintiffs to withdraw the suit with liberty to file a fresh suit. 4. Dismissal of the petition with costs for that reason led the plaintiffs to file the present revision contending that the appellate Court did not exercise its jurisdiction and under Order XXIII Rule 1 of the Code of Civil Procedure, the appellate Court has power to grant such permission. The suit was only for a permanent injunction and other reliefs and in view of the death of the 5th respondent, the plaintiffs desire to file a comprehensive suit, which ought not to have been rejected. In any view, the decree in a suit for permanent injunction does not operate as res judicata. The petition is filed only by way of abundant caution. 5. Heard Sri K. Sitaram, learned counsel for the revision petitioners and Sri G. Goutham Krishna, learned counsel representing Sri R. Radha Krishna Reddy, learned counsel for the respondents. 6. The point for consideration is whether the plaintiffs are entitled to seek permission for withdrawal of the suit with liberty to file a fresh comprehensive suit ? 7. Point: The opinion of the appellate Court that the appellate Court has no jurisdiction to pass any order under Order XXIII Rule 1 of the Code of Civil Procedure after disposal of the suit on merits by the trial Court after full-fledged trial is, of course, not reflecting the correct legal position and the principles governing the exercise of jurisdiction in such an event were laid down in K.S. Bhoopathy and others v. Kokila and others[1], which has been relied on by Sri Goutham Krishna, learned counsel for the respondents. The Apex Court referring to Order XXIII Rule 1 of the Code of Civil Procedure, noted that if a plaintiff is permitted by a Court in the circumstances mentioned in sub-rule (3) of Order XXIII Rule 1 of the Code of Civil Procedure to withdraw from a suit with liberty to sue afresh on the same cause of action, such liberty enables the plaintiff to avoid the bar under Order II Rule 2 and Section 11 of the Code of Civil Procedure and the provision is an exception to common law principles. Grant of leave is at the discretion of the Court, but such discretion is to be exercised by the Court with caution and circumspection when either a suit must fail by reason of some formal defect or the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit. The Court is to discharge the duty mandated under the provision 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. The Apex Court observed that it becomes all the more important when such application is filed at the stage of appeal and grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree against him and seek a fresh adjudication of the controversy on a clean slate. The Supreme Court also pointed out that it may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court and it may also result in annulment of a right vested in the defendant or even a third party. Therefore, the permission for withdrawal of a suit at the appellate or second appellate stage, which also results in wastage of public time of Courts and inordinate delay in disposal of the cases, should be resorted to on consideration of the relevant aspects of the matter and on existence of proper grounds/reasons for granting such permission. The tests laid down by the Apex Court applied to the facts of the present case, do not suggest any justification for considering the request even on merits. 8. A copy of the judgment of the trial Court in O.S. No.47 of 2006, dated 08-12-2008 shows that the 5th defendant, under whom the plaintiffs were claiming right to the properties under a Will, himself appeared before the trial Court and was a party to the common written statement along with other defendants 1 to 4. The defendants including the 5th defendant positively pleaded that he executed three registered sale deeds in favour of defendants 1 to 4 for valid consideration and put defendants 1 to 4 into possession on his own. The evidence of the 2nd plaintiff as P.W.1 in the suit, extracted in the judgment, showed that he admitted that the suit schedule properties are the self-acquired properties of the 5th defendant who was still alive and that the 5th defendant sold the suit properties to defendants 1 to 4 through Exs.A.3 to A.5 and got the mutation effected in revenue records. P.W.2 was also noted to have stated in his cross-examination that the then living 5th defendant acquired the suit properties on his own. The trial Court also concluded that the plaintiffs did not even file a single document in proof of their case and even if the execution of Ex.A.1 Will is believed to be true, no right is created in the plaintiffs in the suit properties during the life of the 5th defendant. The suit was accordingly dismissed. 9. Therefore, it is clear that the dismissal of the suit by the trial Court was not on the ground of any formal defect in the suit. Though it is true that the plaintiffs could not have claimed any right in the suit properties during the lifetime of the testator of the Will, their challenge to the sales under Exs.A.3 to A.5 was on the ground of the said sale deeds being obtained by playing fraud on the 5th defendant who was not in a state of health as to execute any registered sale deeds. The plaintiffs, if their allegations were true, cannot be considered to be totally devoid of any cause of action to approach the Court challenging the alienations under Exs.A.3 to A.5 even during the lifetime of the 5th defendant and even otherwise when the allegations of the plaintiffs were found to be not proved as against the positive contentions of the testator as the 5th defendant in the light of the admissions of P.Ws.1 and 2, there cannot be said to be any circumstances which justify grant of any permission to the plaintiffs for withdrawing the suit with liberty to file a fresh suit. The tests laid down to be applied in such cases by the Apex Court in the precedent cited above are not answered in any manner by the plaintiffs in the present petition and therefore, exercise of judicial discretion by the appellate Court in refusing to grant such permission or leave cannot be interfered with in a restricted revisional jurisdiction of this Court. 10. In the result, the civil revision petition is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 01-11-2011 Svv [1] AIR 2000 SUPREME COURT 2132