Case Note & Summary
The appellant, Sri N. Jagadish Kumar, filed a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 26.07.2023 passed in RA No.126/2021 by the III Additional Senior Civil Judge and JMFC, Kolar, which dismissed the appeal and confirmed the judgment and decree dated 30.10.2021 passed in OS No.158/2011 by the Principal Civil Judge and JMFC, Kolar. The suit was for injunction, but both courts dismissed it on the ground that there was a cloud on the title of the plaintiff. To overcome this situation, the appellant filed I.A.No.2/2023 seeking permission to withdraw the plaint and file a fresh suit for declaration and allied reliefs on the same cause of action. The respondent opposed the application. The High Court, after hearing both sides, observed that it was crystal clear that both courts dismissed the suit on the ground of cloud on title. The court held that the appellant should be permitted to withdraw the suit with liberty to file a fresh suit for declaration and allied reliefs, as the earlier suit was only for injunction. Consequently, the Regular Second Appeal was dismissed as withdrawn, and the application was allowed. No order as to costs.
Headnote
A) Civil Procedure - Withdrawal of Suit - Liberty to File Fresh Suit - Order XXIII Rule 1 CPC - Cloud on Title - The appellant sought permission to withdraw the plaint and file a fresh suit for declaration of title, as both lower courts dismissed the suit on the ground that there was a cloud on the plaintiff's title. The High Court allowed the application, holding that the appellant should be permitted to withdraw the suit with liberty to file a fresh suit for declaration and allied reliefs, as the earlier suit was only for injunction and the cloud on title required a declaration suit. (Paras 3-5) B) Civil Procedure - Regular Second Appeal - Section 100 CPC - Dismissal as Withdrawn - The High Court dismissed the Regular Second Appeal as withdrawn in view of the permission granted to withdraw the suit, and disposed of the appeal accordingly. (Para 5)
Issue of Consideration
Whether the appellant should be permitted to withdraw the plaint and file a fresh suit for declaration and allied reliefs on the same cause of action when both courts dismissed the suit on the ground of cloud on title.
Final Decision
I.A.No.2/2023 is allowed. The appellant is permitted to withdraw the suit with liberty to file a fresh suit for declaration and allied reliefs. The Regular Second Appeal is dismissed as withdrawn. No order as to costs.
Law Points
- Withdrawal of suit with liberty to file fresh suit
- Order XXIII Rule 1 CPC
- Cloud on title
- Declaration suit
- Regular Second Appeal
