ORDER
L. Narasimha Reddy, J.
1. Plaintiff in O.S. No. 133 of 1998 on the file of Junior Civil Judge, Kalwakurthy intended to withdraw the suit. He filed LA. No. 38 of 2004 under Order XXIII, Rule I C.P.C. for this purpose. The Trial Court, through its order dated 21.7.2004, directed the defendants in the suit to remove the wall said to have been constructed by the plaintiff during the pendency of the suit. It also refused the leave to the plaintiff to file a fresh suit on the same cause of action; and ultimately dismissed the suit as withdrawn with costs. Feeling aggrieved by the observations made and conditions imposed by the Trial Court, the plaintiff filed this civil revision petition.
2. The suit was filed by the petitioner herein for the relief of perpetual injunction against the respondents. He filed LA. No. 38 of 2004 stating inter alia that in view of the report submitted by the Commissioner appointed by the Court, with the assistance of Deputy Director of Survey and Land Records, he no longer intends to proceed with the suit and sought permission to withdraw it, with liberty to file fresh suit on the same cause of action or any cause of action that may arise after the date of Commissioner’s report viz., 10.7.2003. The respondents filed a counter-affidavit resisting the application. According to them, the petitioner has undertaken certain constructions in the suit schedule property on the strength of an order of temporary injunction obtained in the suit and he cannot be permitted to withdraw the suit abruptly. They also pleaded that they incurred an expenditure of about Rs.20,000/- to defend themselves and that the petitioner be required to make good the same. The Trial Court passed an order as mentioned above.
3. Learned Counsel for the petitioner submits that it is always in the discretion of the plaintiff to withdraw a suit reserving the liberty to file a fresh suit in respect of the subject-matter of the suit and the Trial Court was not justified in making observations and imposing conditions as it did, in the order under revision. He submits that the question of placing any restrictions on such rights arises if only a decree was passed in the suit or subsequent proceedings in the form of appeal etc., have ensued.
4. Learned Counsel for the respondents, on the other hand, submits that it is in the discretion of the Court to accord permission to withdraw a suit before it, and to impose conditions, as are necessary, to protect the interests of the parties. He contends that it is always competent for a Court to undo the damage that has been caused to the defendant by the plaintiff, while according permission to withdraw the suit. Both the Counsel have relied upon judgments rendered by the Supreme Court as well as this Court in support of their contentions.
5. The petitioner filed the suit against the respondents for the relief of perpetual injunction in respect of the suit schedule property. The suit has undergone certain stages, including the consideration of application filed under Order XXXIX, Rule 1 C.P.C., appointment of a Commissioner and submission of a report by the Commissioner etcetera. When the petitioner wanted to withdraw the suit by filing an application under Order XXIII, Rule 1 C.P.C., it was resisted by the respondents on the grounds referred to above. In its order, the Trial Court has taken note of the contentions of both the parties, made certain observations and refused to grant liberty to the petitioner to file fresh suit on the same cause of action. The relevant observations read as under:
“The Counsel for the respondent has argued that under the guise of orders of injunction the petitioner/plaintiff has raised structures in the disputed open plot, and therefore he may be ordered to remove the illegal structures. Though there is no meaning in removing the raised walls which can be made use by the petitioner/plaintiff in order to prevent further complication of claiming any right by the defendants, I feel it just to direct the defendants to remove the walls.
Nextly the respondents contention is that towards the litigation they have incurred an expenditure of Rs.20,000/- right from 1998, therefore it is felt proper to permit the withdrawal of the suit with costs of the suit only. Accordingly, the point raised is answered and the petition is allowed, and the suit is permitted to be withdrawn with costs, but it is without any reserving of right to file a fresh suit on the same cause of action.”
6. Before dealing with the contentions of the parties, it is necessary to note down the scope and ambit of the applications filed under Order XXIII, Rule 1 CPC. Order XXIII, Rule 1 enables the plaintiff to abandon the suit claim in its entirety or in part. Sub-rule (3) thereof, mandates that the Court can accord permission to the plaintiff to withdraw the suit, with liberty to institute a fresh suit in respect of the subject-matter of such suit or part of the claim. Sub-rule (4) is to the effect that unless the permission contemplated under sub-rule (3) is accorded, the plaintiff shall be precluded from instituting any fresh suit in respect of the subject-matter or part of the claim. Therefore, unless the plaintiff in a suit is granted the liberty to institute a fresh suit, the dismissal of the suit as withdrawn, would preclude him from filing a fresh suit.
7. The right of a plaintiff to withdraw the suit and the discretion of the Court in permitting for such withdrawal, was the subject-matter of several decisions rendered by various High Courts as well as the Supreme Court spread over several decades. The stage of the proceedings was treated as an important factor in this regard. If the suit is sought to be withdrawn before any decree is passed thereon, hardly any hurdles come in the way of the plaintiff. However, where the suit has resulted in a decree or where it is pending in an appeal or subsequent stages, the law requires that the benefit that has already accrued to the defendants on the basis of such adjudication cannot be just brushed aside. In Thakur Balaram Singh v. K.Achuta Rao 1977-II APLJ 111, Justice Ramachandra Rao reviewed the judgments rendered by this Court and several High Courts and summed up the law as under:
(1) That the plaintiff has an absolute right to withdraw his suit before the passing of a decree under Order 23, Rule 1(1) CPC.
(2) That the plaintiff can also apply for withdrawal of the suit with liberty to file a fresh suit on the same cause of action under Order 23, Rule 1(2) C.P.C. provided the conditions therein are satisfied.
(3) That the plaintiff can apply for withdrawal of the suit at the appellate stage; but the grant of permission will be refused if it results in prejudice or deprival of any rights which became vested or accrued to the defendants by reason of the findings recorded by the Trial Court, or the appellate Court as the case may be; and
(4) That the question of granting liberty to file a fresh suit on the same cause of action would not arise where permission for withdrawal is granted under Order 23, Rule 1(1) CP.C.”
In M/s. Hulas Rai v. K.B. Bass and Co., , the Supreme Court held that as long as a decree, be it preliminary or final, is not drawn in a suit, there is no impediment for a plaintiff to withdraw the suit. The situation is, however, distinguished where the defendant has pleaded set-off. It was observed as under:
“There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, C.P.C. or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.”
The Supreme Court dealt with the instances where the withdrawal was sought at a stage subsequent to passing of the decree in the suit. In R. Rathinavel Chettiar v. V.Sivaraman, , it discussed its earlier judgments and those rendered by various High Courts and held that no absolute right vests in the plaintiff to withdraw the suit once a decree was passed. It was observed that in such cases, the Court has to satisfy itself as to the existence of strong reasons warranting withdrawal and that such withdrawal does not affect the rights of the defendant. It runs thus:
“In view of the above discussion, it comes out that where a decree passed by the Trial Court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody’s vested rights.”
To the same effect is the judgment of the Supreme Court in K.S. Bhoopathy v. Kokila, . A further caution was added that the Court’s time already utilized cannot be permitted to go waste, by granting leave to the plaintiff to withdraw the suit, when he senses that it is no longer profitable for him to pursue the matter further.
8. Reverting to the facts of the case, it is evident that the suit in question is still at the stage of trial. The purport of the precedents referred to above, is that as long as a decree is not passed in a suit, the right of a plaintiff to withdraw the suit is almost unfettered. If the plaintiff has secured any benefit in the form of interim orders, before withdrawing the suit, the Trial Court can take the same into account and pass appropriate orders. So far as reserving the liberty of the plaintiff is concerned, it is with reference to the subject-matter and not cause of action. This assumes significance in the suits for perpetual injunction. The reason is that the cause of action in a suit for preventive remedy does not survive once the suit is withdrawn. It shall always be open to the plaintiff in such suits, to file fresh suit on the basis of subsequent cause of action. The very fact that the plaintiff has chosen to withdraw the suit for injunction discloses that there did not exist any valid cause of action pleaded by him in it while filing. A cause of action, which did not either exist or survive in an earlier suit, cannot constitute the basis for the subsequent suit.
9. It is in this background that the three directions issued by the Trial Court viz., direction to the respondents to remove the wall, award of costs and rejection of liberty to the plaintiff to file fresh suit on the same cause of action, need to be considered. The direction to the respondents to remove the wall is almost meaningless. It is not known whether the Trial Court intended to issue such direction to the petitioner or the respondents herein. Either way, it is outside the scope of the application filed under Order XXIII, Rule 1 C.P.C. The suit was for injunction simplicitor. With the withdrawal of the suit, the temporary injunction granted in favour of the petitioner gets dissolved and he will no longer be entitled to protect such temporary injunction. The parties have to work out their remedies as per their entitlement.
10. Learned Counsel for the petitioner docs not make much of the grievance as to the costs. He states that the decree that was drawn pursuant to the order under revision did not reflect any costs. Hence, it is not necessary to delve into the same. So far as the last aspect is concerned, the very request of the petitioner that he be permitted to reserve the liberty to file a fresh suit on the same cause of action is opposed to Rule I of Order XXIII CPC. What is permitted to be reserved under sub-rule (3) is the liberty to file a suit in respect of the same subject-matter and not on the same cause of action. Added to that, the cause of action in a suit for perpetual injunction, as observed earlier, cannot spill over the withdrawal of the suit. Hence, the permission accorded to the petitioner for withdrawing the suit has to be treated as the one, without prejudice to the liberty of the petitioner herein to file a suit for the same subject-matter.
11. Hence, the civil revision petition is allowed and the order under revision is modified to the effect that the direction as to demolition of the wall is set aside and that the suit is dismissed as withdrawn, without prejudice to the right of the petitioner herein to file a fresh suit is respect of the same subject-matter in accordance with law. As regards the wall referred to in the order, it shall be open to the parties to take such steps, as are open to them in law. No costs.