@JUDGMENTTAG-ORDER
B. Manohar, J.@mdashPetitioner, who is the plaintiff in O.S. No. 449/2007 being aggrieved by the order dated 16.11.2013 made on I.A. No. V, filed under Order 23 Rules 1 and 2 of C.P.C., in O.S. No. 449/2007 on the file of III Addl. Civil Judge and JMFC, Mangalore, D.K. filed this writ petition.
2. Petitioner is the plaintiff. He filed a suit seeing for permanent prohibitory injunction restraining the defendant from trespassing the suit schedule property or putting up any construction within the schedule property or committing any acts of waste or damages to the suit property. In the plaint, it was contended that grandfather of the plaintiff one Mr. Benedict Almeida was a mulgeni tenant in respect of land bearing Sy. No. 87/3 measuring 0.50 cents situated at Panchanady village, Mangalore Taluk. The said Mr. Benedict Almeida has purchased the mulgeni right from one Mr. Antony D''Souza as per registered mulgeni deed dated 28.10.1958, since then the grand father, thereafter the father of the plaintiff and the plaintiff were in possession of the suit schedule property. The land tribunal has granted occupancy right in favour of Mr. Benedict Almeida. However, the defendant was interfering with his peaceful possession and tried to put up construction within the suit schedule property. In view of that, the present suit was filed. The contesting defendant filed written statement denying the title and possession of the plaintiff and also entire averments made in the plaint. In the written statement, it was contended that wife of the defendant purchased the suit schedule property, constructed house and residing therein. But she was not made a party. The defendant further contended that the plaintiff has nothing to do with the same and sought for dismissal of the suit.
3. Since the defendant denied the title of the plaintiff, plaintiff thought of filing a comprehensive suit since there is a formal defect in the suit. Therefore, he filed an application - I.A. No. V, under Order 23 Rules 1 and 2 of C.P.C. and sought for permission of the Court to withdraw the suit with liberty to file comprehensive suit. The contesting defendant objected for allowing I.A. No. V. The trial Court after considering the matter in detail rejected I.A. No. V. Being aggrieved by the said order, the petitioner filed this writ petition.
4. Sri Cyril Prasad Pais, learned advocate appearing for the petitioner contended that order passed by the trial Court is contrary to law. The plaintiff had filed a suit seeking for bare injunction and he had not sought for any declaration. The defendant filed written statement, deriving the title and possession of the plaintiff over the suit property. In view of that, the plaintiff thought to file a suit seeking for declaration and also possession. The plaintiff will not get any relief from the suit filed in the present form. Hence, he filed an application I.A. No. V, seeking permission to withdraw the suit. The reasons assigned by the trial Court in rejecting the application is contrary to law. Hence, he sought for allowing the writ petition by quashing the impugned order.
5. On the other hand, Sri B. Sharath Kumar, learned advocate appearing for the respondent argued in support of the order passed by the trial Court and contended that suit has been filed in the year 2007, immediately thereafter written statement has been filed. In the written statement, it was disclosed that the defendant is not the owner of the property, wife of the defendant purchased the suit schedule property and she is in possession. Though, the written statement was filed in the year 2007, the petitioner has come up with an application after a lapse of seven years to withdraw the present suit, in order to harass the defendant. The liberty prayed in the application by the plaintiff cannot be granted. The trial Court taking into consideration all these aspects of the matter rejected the application - I.A. No. V. Hence, he sought for dismissal of the writ petition.
6. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.
7. The plaintiff filed the application - I.A. No. V seeking permission to withdraw the present suit with liberty to file a fresh suit. In the application, he has stated that he will not get any relief with regard to the prayer sought in the present form. In view oft the pleadings and objection statement filed by the defendant denying the title as well as possession of the plaintiff, he has to file a comprehensive suit seeking for declaration, possession and injunction. The defendant will not put to any hardship, if the prayer sought by the plaintiff in the application - I.A. No. V, is considered. On the other hand, the plaintiff will be put to great hardship if the liberty sought for, is denied and he cannot protect his interest of his ancestral property, which was purchased by his grandfather with regard to mulgeni right. Thereafter, the land tribunal granted occupancy right and sought for allowing the writ petition.
8. On perusal of the records and arguments, I am of the opinion that the plaintiff claims that he is the owner of the suit schedule property. By virtue of the order passed by the land tribunal, the grandfather of the plaintiff was in possession of the suit schedule property and after his death the plaintiff was in possession. In order to protect the interest of the ancestral property, the plaintiff has filed a suit seeking for injunction restraining the defendant from putting up any construction. The defendant filed written statement denying the title of the plaintiff over the suit schedule property. Further, he contended that the plaintiff not the owner of the suit schedule property and no suit can be maintainable against the defendant. In view of the objections raised in the written statement, the plaintiff thought that he would not get any relief in the suit filed in the present form and he thought to file a comprehensive suit, claiming reliefs such as, declaration, possession and injunction. In the present suit, he cannot seek for amendment of such a prayer and sought permission of the Court by filing an application to withdraw the suit. Order 23 Rules 1 and 2 of C.P.C., provides for withdrawal of the suit. The trial Court held that the application has been filed after lapse of seven years seeking for withdrawal of the suit. Hence, the same cannot be considered and liberty cannot be given to-file a fresh suit.
9. The order passed by the trial Court is too technical. A person has right to withdrew and file a fresh suit, if the earlier suit is not in accordance with law and if there is any lacuna. If he cannot get any relief in the present suit, he can file a fresh suit seeking for some other relief not the relief what is sought in the present form. The specific case of the plaintiff is that he wants to withdraw the present suit in order to file a comprehensive suit with some other relief. The reasoning of the trial Court is too technical. The aggrieved person cannot be denied of his right to remedy by filing a fresh comprehensive suit by withdrawing the present suit. He cannot file a fresh suit on the same cause of action, but he can file a fresh suit seeking some other reliefs. Hence, the order passed by the trial Court cannot be sustainable and it requires to be set aside. Accordingly, I.A. No. V is allowed and the petitioner is permitted to withdraw the suit in O.S. No. 449/2007, with liberty to file comprehensive suit not for the same cause of action.
With the above observations, the writ petition is allowed and the order passed by the trial Court is set aside.
