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2000 DIGILAW 1104 (MAD)

KR. Ayyavoo Servai v. N. Sethu

2000-11-10

V.KANAGARAJ

body2000
ORDER The above civil revision petition is directed against the fair and decretal order dated 22.3.1999 made in I.A.No.69 of 1999 in O.S.No.11 of 1994 by the Court of Additional District Munsif, Sivagangai. 2. To trace the facts of the case, regarding the suit properties, the petitioner herein had filed a suit in O.S.No.11 of 1994 before the Court of Additional District Munsif, Sivagangai praying for declaration of his possessory rights and permanent injunction and the said suit having been dismissed after full trial, he preferred an appeal in A.S.No.37 of 1998 before the Court of District Judge, Sivagangai and the said appellate court by judgment dated 15.9.1998 besides setting aside the judgment and decree passed by the trial court dated 18.12.1997, remanded the matter to the trial court for fresh trial to be held and the same was pending before the trial court. At this stage, an application in I.A.No.457 of 1998 had been filed on the part of the petitioner for appoint of a commission to inspect the suit locality to ascertain that the petitioner was in possession and enjoyment of the suit property along with some other properties and the commission having been appointed, on inspection made, the learned Commissioner had also filed his report in the Court. 3. The petitioner would further submit that on the part of the defendants also, they are contending that the suit property is a common property thus claiming title to the suit property and hence whatever be the position of title to the suit property, since the petitioner is in continuous possession and enjoyment of the same for over the statutory period, necessity has arisen in the suit to get a declaration that the petitioner is entitled to the suit properties by means of adverse possession. But, on the contrary, the suit has been filed only for declaration of his possessory right and injunction and in these circumstances, since the defendants have a right to ask for the dismissal of the suit based on such altered plea, necessarily the petitioner has to withdraw the suit but with liberty to file a fresh suit in its place on the same cause of action for a modified relief and hence the petitioner has filed the petition in I.A.No.69 of 1999 before the Court below praying to permit him to withdraw the suit but with liberty to file a fresh suit on the same cause of action. 4. In the counter filed on the part of the defendants, they would allege that the suit filed by the petitioner having already been dismissed, an appeal had been preferred and it was argued in the appeal that the trial court should have appointed a Commissioner to inspect the suit locality and decided the suit on the basis of the report submitted by the Commissioner apart from filing some additional documents and the appellate court having accepted the additional documents and the arguments advanced on the part of the petitioner before it had set aside the judgment and decree of the trial court and remanded the case to the trial court itself with certain directions; that in carrying out the directions issued by the appellate court, a Commissioner also got appointed and he submitted his report, but without carrying on with the suit, as directed by the appellate court, the petitioner has now come forward to file the petition to permit him to withdraw the suit with liberty to file a fresh suit on the same cause of action, which he is not entitled to seek for; that the petitioner is not at all in possession and enjoyment of the suit so as to become eligible to plead or pray to the effect that he is entitled to the suit property by means of adverse possession and moreover, the plaintiff having already suffered a decree, the alternate plea advanced on the part of the petitioner in this application cannot be complied with nor could it be granted and on such grounds would pray for dismissing the application. 5. 5. The Court below, having examined the pleadings of the petition and the counter and having traced the pre-history of the case right from the time of filing of the suit by the petitioner and assessing the present stage of the suit the dismissal of the same, the appeal preferred, the remand made by the appellate court with direction to appoint a commission and the trial court appointing a Commissioner, the Commissioner inspecting the spot and submitting his report on 29.1.1999 along with the sketch, finds that when the case was posted for hearing in the list on 5.2.1999 and again having adjourned to 9.2.1999 and 15.2.1999 at the request of the learned Counsel for the petitioner, ultimately on 16.2.1999 when the matter was taken up for trial, the petition had been filed under O.23, Rule 1, C.P.C. seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action with a modified relief. 6. The trial court in consideration of the materials placed on record would further remark that the appellate court directed the trial court to give adequate opportunity for parties to adduce additional evidence and on a commission being appointed, the Commissioner submitted his report and when the matter was posted for trial ultimately in consideration of the fact that the matter was pending for more than five years, without complying with the directions of the appellate court, the petitioner has come forward to file such an application only to delay the process of law and to subject the other side to hardship and inconvenience; that moroever, the attitude exhibited on the part of the petitioner would further go against the very intention of the appellate court in having remanded the matter with such directions and defeat the very compliance of such directions by the trial court and on such remarks, the trial court finding that there is absolutely no justification on the part of the petitioner to have come out with such an application, would ultimately dismiss the petition, but without costs. It is only against this fair and decretal order passed by the trial court, the petitioner/plaintiff has come forward to file the above civil revision petition on certain grounds as brought forth in the grounds of Memorandum of the civil revision petition. 7. It is only against this fair and decretal order passed by the trial court, the petitioner/plaintiff has come forward to file the above civil revision petition on certain grounds as brought forth in the grounds of Memorandum of the civil revision petition. 7. During arguments, the learned Counsel appearing for the revision petitioner would submit, that the suit properties are the landed properties falling under two categories measuring (i) 0.50.0 hectares and (ii) 0.14.05 hectares and that prescriptive right by long possession has been acquired as a result of which the prayer in the suit has to be altered. The learned counsel for the petitioner would also cite a judgment of this Court delivered in Kokila and another v. K.S. Bhoopathy and five others Kokila and another v. K.S. Bhoopathy and five others Kokila and another v. K.S. Bhoopathy and five others (1998)3 C.T.C. 16 which has been rendered following the proposition laid down in the judgment of the Apex Court delivered in Baniram and others v. Gaind and others Baniram and others v. Gaind and others Baniram and others v. Gaind and others A.I.R. 1982 S.C. 789 wherein the Supreme Court, in the facts and circumstances encircling the case therein, has permitted the party, on a cost of Rs.1,000, to withdraw the suit with liberty to file fresh suit on same or different cause of action. Citing the above judgments, the learned Counsel for the petitioner would pray to allow the revision petition permitting the petition to withdraw the suit with a liberty to file a fresh suit, even by imposing some costs. 8. On the other hand, the learned counsel for the respondents having putforth the facts, would point out that the purpose of withdrawal is highly detrimental to the interest of the respondents, which is reflected in the reasons assigned in the order of the lower Court. The learned counsel would cite a judgment of this Court delivered in A.P. Sahurudeen and another v. Antony and two others A.P. Sahurudeen and another v. Antony and two others A.P. Sahurudeen and another v. Antony and two others (1992)1 L.W. 100 wherein the learned single Judge of this Court, having considered the similar question, has ultimately arrived at the conclusion that the plaintiff has failed to establish his case on merits and hence he is not entitled, as of right, to seek withdrawal. 9. 9. The other judgment cited by the learned counsel for the respondents is one delivered by the Apex Court in R. Rathinavel Chettiar and another v. V. Sivaraman and others R. Rathinavel Chettiar and another v. V. Sivaraman and others R. Rathinavel Chettiar and another v. V. Sivaraman and others (1999)2 C.T.C. 593: (1999)3 MLJ. (S.C.) 47 wherein it has been held: “O.23, Rule 1 provides that a plaintiff can withdraw a suit or abandon a part of his claim unconditionally. It creates a right in favour of the plaintiff to withdraw the suit, at any time, after its institution. Once the suit is withdrawn or any part of the suit is abandoned against all or any of the defendants, unconditionally, the plaintiff cannot bring a fresh suit on the same cause of action unless leave of the court is obtained as provided byO.23 , Rule 1(3)(b). In other words, a plaintiff cannot while unconditionally abandoning a suit or abandoning a part of his claim, reserve to himself the right to bring a fresh suit on the same cause of action.” 10. The other judgment cited by the learned Counsel is one delivered by the Apex Court in K.S. Bhoopathy and others v. Kokila and others K.S. Bhoopathy and others v. Kokila and others K.S. Bhoopathy and others v. Kokila and others (2000)5 S.C.C. 458 wherein it is held: “The provision in O.23, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code 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. This becomes all the more important in a case where the application under O.23, Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed inO.23 , Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed inO.23 , Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of the cases.” It is pertinent to note here that the very judgment cited by the petitioner reported in Kokila v. K.S. Bhoopathy Kokila v. K.S. Bhoopathy Kokila v. K.S. Bhoopathy (1998)3 C.T.C. 16 has been reversed by the Apex Court in the above judgment, on appeal preferred by the other side in K.S. Bhoopathy and others v. Kokila and others K.S. Bhoopathy and others v. Kokila and others K.S. Bhoopathy and others v. Kokila and others (2000)5 S.C.C. 458 . Therefore, the proposition as held by the single judge of this Court cited by the petitioner reported in (1998)3 C.T.C. 16 is no more a healthy proposition and hence becomes not applicable to the care in hand. 11. The other judgment cited by the learned Counsel for the respondents is one delivered by a Division Bench of this Court in K. Chinna Vaira Thevar v. S. Vaira Thevar K. Chinna Vaira Thevar v. S. Vaira Thevar K. Chinna Vaira Thevar v. S. Vaira Thevar A.I.R. 1982 Mad. 160 wherein it is held: “The failure or inability of the plaintiff to secure necessary evidence to support his case will not be a ground as contemplated in Rule 1(3) (b) ofO.23. The expression” sufficient grounds “occurring in Rule 1(3)(b) will not take in, dismissal of a suit on the ground that the plaintiff has not established his case. The object of the rule is not to enable the plaintiff after he has failed to establish his case by adducing requisite evidence to have a further opportunity to file a fresh suit to reagitate the matter so as to prejudice the other side. If such a thing is permitted there will be no end to any litigation. The object of the rule is not to enable the plaintiff after he has failed to establish his case by adducing requisite evidence to have a further opportunity to file a fresh suit to reagitate the matter so as to prejudice the other side. If such a thing is permitted there will be no end to any litigation. The plaintiff cannot be permitted to withdraw the suit at the trial stage, when he finds that the evidence by him is insufficient to establish the case propounded by him. Consequently, he cannot also be permitted to withdraw the suit at the appellate stage after the trial court has considered the entire evidence on merits and held that the evidence adduced is insufficient to establish the plaintiff's case.” 12. The other judgment cited by the learned Counsel for the respondents is one delivered by the single Judge of this Court in Singaravel Padayachi v. Nagammal & others Singaravel Padayachi v. Nagammal & others Singaravel Padayachi v. Nagammal & others (1996)1 L.W. 430 wherein the learned single Judge has declined to permit the plaintiff to withdraw the suit since he has come forward to file the petition after the evidence was over. 13. The last judgment cited by the learned Counsel for the respondents is one delivered by the learned single Judge of this Court in Sama Naicker and 2 others v. Veluchamy and 2 others Sama Naicker and 2 others v. Veluchamy and 2 others Sama Naicker and 2 others v. Veluchamy and 2 others (1995)2 L.W. 244 wherein also the permission sought for by the plaintiff to withdraw the suit during pendency of the appeal against the dismissal of the suit for injunction was declined to be granted by the learned single Judge. 14. Now, the only point that arises for consideration is, whether the revision petitioner should be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action as prayed for in the application filed before the lower Court? 15. 14. Now, the only point that arises for consideration is, whether the revision petitioner should be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action as prayed for in the application filed before the lower Court? 15. From the backdrop of the entire proceeding right from the time of institution of the suit till the time of filing of the petition for withdrawal of the suit, as rightly pointed out on the part of the lower Court, five precious long years have gone by and it is only after losing the suit and preferring the appeal and seeking for a remand for additional Court conceding the case of the petitioner for the appointment of a commission to inspect the spot with further opportunity for parties to be heard and decide the case, had remanded the matter to the trial court which having carried out all such directions issued by the appellate court, at the time when trial was to be commenced, the petitioner has come forward to say that he found out from the report submitted by the Commissioner after inspection of the suit locality that he has got a novel right to be established i.e., his title based on long possession thus opting to file the interlocutory application stating that he has to pray for the relief of declaration that he is entitled to the suit property by means of adverse possession and hence he must be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. 16. It is relevant to note that the suit had been filed by the petitioner for a declaration of his possessory right and for permanent injunction. Unless the petitioner was definite about his title, he would not have come forward to plead as stated above. 16. It is relevant to note that the suit had been filed by the petitioner for a declaration of his possessory right and for permanent injunction. Unless the petitioner was definite about his title, he would not have come forward to plead as stated above. Having lost the suit once and on appeal under pretext that the appointment of the commissioner is necessary having got the remand of the matter and the appellant Court directions also having been complied with by the trial court, now, the petitioner has come forward with the plea to withdraw the suit with liberty to file a fresh suit on the same cause of action and this is too much an advantage attempted to have been taken on the part of the petitioner making use of certain provisions of law that are meant for application only in genuine cases. There is absolutely no justification to concede the request of the petitioner for withdrawal of the suit much less with liberty to file a fresh suit with the same cause of action to suit only his convenience. 17. All the judgments cited on the part of the respondents are unequivocal and pointed towards not permitting any party in the position of the petitioner to withdraw the suit much less with the luxurious and exuberant relief i.e., with liberty to file a fresh suit on the same cause of action for a modified relief. Already a precious time of five years has been lost, causing much hardship to the respondents for no fault of theirs, in the process of the suit as filed by the petitioner. Already a precious time of five years has been lost, causing much hardship to the respondents for no fault of theirs, in the process of the suit as filed by the petitioner. The judgment cited on behalf of the petitioner reported in Kokila v. K.S. Bhoopathy Kokila v. K.S. Bhoopathy Kokila v. K.S. Bhoopathy (1998)3 C.T.C. 16 has been reversed by the Apex Court in the recent judgment cited on the part of the respondents by their Counsel delivered in K.S. Bhoopathy and others v. Kokila and others K.S. Bhoopathy and others v. Kokila and others K.S. Bhoopathy and others v. Kokila and others (2000)5 S.C.C. 458 thereby declaring that in such circumstances as it is widely prevalent in the case in hand permitting to withdraw the suit by the petitioner with liberty to file a fresh suit on the same cause of action is no longer a healthy proposition and hence the only conclusion that could be arrived at, in the circumstances of the case, is that the reasons offered on the part of the petitioner are neither just nor convincing and the application filed by the petitioner as concluded by the Court below deserves only to be dismissed and no interference as sought for on the part of the petitioner to be made into the fair and decretal order passed by the lower Court need be necessary. In short, either on facts or in law, the petitioner is in no manner entitled to the relief sought for in the petition. The petition has no merits and deserves only to be dismissed. 18. In result, the above civil revision petition fails and the same is dismissed. 19. The fair and decretal order dated 22.3.1999 made in I.A.No.69 of 1999 in O.S.No.11 of 1994 by the Court of Additional District Munsif, Sivagangai is hereby confirmed. 20. However, in the circumstances of the case, there shall be no order as to costs. 21. Consequently, C.M.P.No.9915 of 1999 is also dismissed. S.S. ----- Petition dismissed.