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2001 DIGILAW 915 (MAD)

RAMIAH NADAR v. ESAKI AMMAL

2001-08-14

E.PADMANABHAN

body2001
Judgment : E. PADMANABHAN, J. (1) THIS revision has been preferred against the fair and decretal order dated 4/1/1999 passed in LA. No. 78 of 1999 in O. S. No. 326 of 1992 on the file of the additional District Munsif Court of ambasamudram. (2) HEARD Mr. S. Subbiah, learned counsel appearing for the petitioner and Mr. T. S. Sivagnanam, learned counsel appearing for the respondents. (3) IN this revision petition, the petitioner challenges the order of the court below in dismissing the application filed under O. 23, Rule 1 (3)read with Sec. 151, C. P. C. , and declining to grant leave to the petitioner to file a fresh suit on the same cause of action. (4) MR. S. Subbiah, learned counsel for the petitioner contended that the order of the Court below suffers with illegality. It is a refusal to exercise the jurisdiction vested in it and by mere grant of leave to file a fresh suit on the cause of action, the rights or claims which had already reached finality or which is already barred by the law of limitation will not be revived and the contrary view taken by the Court below cannot be sustained. The Court below on a misconception of O. 23, Rule 1 had dismissed the application and the same has to be set aside. (5) PER contra, Mr. T. Sivagnanam, learned counsel appearing for the respondents contended that the court below had rightly dismissed the application and no interference is called for. It is further contended that what the petitioner could not achieve in the pending suit by taking up an application for amendment of the plaint, he cannot be allowed to achieve the same indirectly by withdrawing the suit with leave to file a fresh suit on the same cause of action. It is further contended that if leave is granted, the same would enable the respondents to get over the plea of limitation, which is impermissible in law. (6) TO examine the respective contentions advanced, it is essential to refer to the brief facts leading to the revision petition. The petitioner herein instituted the suit O. S. No. 326 of 1992 on the file of the District munsif Court, Ambasamudram seekinga the relief of declaration of title, for permanent injunction as well as mandatory injunction. (6) TO examine the respective contentions advanced, it is essential to refer to the brief facts leading to the revision petition. The petitioner herein instituted the suit O. S. No. 326 of 1992 on the file of the District munsif Court, Ambasamudram seekinga the relief of declaration of title, for permanent injunction as well as mandatory injunction. The petitioner/ plaintiff claimed that he is the owner of the first schedule property by purchase so also he has acquired 4/5th share in the second schedule well the right to draw water, picota stand, pathway etc. and the defendants have 1/5th share. As the defendants attempted to interfere with the rights of the plaintiff, the suit has been filed. The respondents contested the suit denying the entire claim. Pending the suit the petitioner filed an application to amend the plaint. The said application for amendment was resisted by the respondent. The said application for amendment was ultimately dismissed by this court in C. R. P. No. 3029 of 1996 on 27. 11. 1998. The suit remains partly heard. In the meanwhile, the petitioners Advocate passed away and he had engaged another member of the bar to appear on his behalf. (7) ACCORDING to the affidavit filed in support of the application, the new advocate he had engaged advised him that the petitioner had not sought for declaration in respect of the second schedule as well as the relief prayed in respect of the second schedule namely the right to take water and other co-sharers who are necessary parties have not been impleaded and therefore there is a formal defect as well as technical defect in the pleadings. The counsel advised the petitioner to withdraw the present suit with liberty to file a fresh suit on the same cause of action. Hence the application. (8) THE respondents resisted the application contending that after trial when the application for amendment had already been rejected, it is not open to the petitioner to indirectly take away the effect of dismissal of the amendment application passed in the civil revision petition and therefore the application for leave to withdraw the suit deserves to be dismissed. (9) THE Court below considered the application and by order dated 4th of November, 1999 dismissed the application. Hence, the present revision. (9) THE Court below considered the application and by order dated 4th of November, 1999 dismissed the application. Hence, the present revision. (10) THE Court below while framing the point for consideration in the application proceeded as if the rejection of the application for amendment of the plaint by this Court will disentitle the petitioner from seeking the relief applied for. To get over the defects namely formal or technical defects, the petitioner moved an application for amendment of the pleadings, which had been rejected and therefore what could not be achieved directly cannot be allowed to be achieved indirectly. In other words the Court below had chosen to hold that dismissal of the amendment application is fatal to the present application for leave to withdraw the suit. This approach of the Court below in my considered view cannot be sustained as it is a misdirection. Merely because an application for amendment of the plaint had been rejected, the same cannot be the criteria or reason or the ground for dismissal of an application to withdraw the suit with liberty to file a fresh suit on the same cause of action. (11) IT is true the petitioner applied for amendment of the plaint substantially to get over the defects. But his application has been dismissed. Therefore, the petitioner is not in a position to proceed further in the matter as the defect is formal and technical which will be a valid ground for the petitioner to withdraw the suit in terms of O. 23, Rule 1. O. 23, Rule 1 enables a plaintiff to withdraw the suit or with the leave of the Court, if the plaintiff could satisfy the Court that the suit must fail by a reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit. In this case the application has been taken out not only on the ground of formal defect but also on the basis that there are sufficient grounds to allow the plaintiff to institute a fresh suit. (12) PRIMA facie, this Court holds that there is not only a formal defect in the very suit, but also there is sufficient ground for allowing the plaintiff to institute a fresh suit for the subject matter of the claim or in respect of the very suit claim. (12) PRIMA facie, this Court holds that there is not only a formal defect in the very suit, but also there is sufficient ground for allowing the plaintiff to institute a fresh suit for the subject matter of the claim or in respect of the very suit claim. There is no escape that the defect is formal and with the said defect if the plaintiff proceeds further naturally and consequently he may fail which will result in denial of substantial justice. (13) THE procedural law is meant to advance and secure justice and not for denial of justice. If the petitioner/ plaintiff has got the right in respect of the first schedule as well as the second schedule, namely right to draw water as well as his claiming 4/5th share in the well, the same cannot be allowed to be defeated by the formal defect in the drafting of the pleadings. It is a mofussil pleading. Though there is minimum plea with respect to the second schedule, as has been advised the same will not be sufficient since the petitioner had failed to seek for declaration in respect of the second schedule by setting forth the requisite plea, the basis of claim and the details of right which the petitioner claims in this respect. (14) HOWEVER an attempt to amend the plaint had been negatived. This has disabled the petitioner from proceeding further in the matter. Merely because the amendment application had been rejected, in my considered view that cannot be a ground to reject the application filed under O. 23, Rule 1, when the petitioner satisfies the requirements of the said Rule. (15) RAJU, J. as he then was, in registrar of Manonmaniam Sundaranar university v. Sushura Beevi Educational Trust and others had occasion to consider the scope of O. 23, Rule 1 and the right of the plaintiff to withdraw the suit. In that context the learned Judge held thus:"though liberty may be with the plaintiff in a suit to withdraw or abandon at any time after the institution of the suit, the whole of the suit or part of his claim, yet, in my view, it cannot be considered to be so absolute as to permit or encourage or ratify an abuse of process of Court or fraud to be played upon parties as well as Court. The so called abandonment ought not to be a ruse to get rid of a party but yet to get the same relief prayed for earlier. Even that apart, sub-rule (3) of Rule 1 of O. 23, C. P. C. would show that where the plaintiff withdraws or abandons a part of the claim even without permission to lay a fresh suit, he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of the subject matter or such part of the claim. As noticed earlier, in the case on hand, the 3rd defendant before this Court has already filed its written statement and has also filed its counter affidavit in the injunction application. The petitioner-university has its seat of office at tirunelveli and it has been dragged by the plaintiff to the courts at Madras. Therefore, it has every legitimate right to press for costs, even if the plaintiff is desirous of withdrawing its suit or abandoning the claim partly against any one of the parties. " (16) A Division Bench of this Court in K. Chinna Vaira Thevar v. S. Vaira thevar, while considering the expression "sufficient grounds" occurring in rule 1 (3) (b) of O. 23 though held that the failure inability of the plaintiff to secure necessary evidence to support his case is not a sufficient cause or ground, but it was held further if there is a formal defect or sufficient cause and if the Court is satisfied leave could be granted. (17) THERE is no dispute that the suit suffers with formal defect, besides according to the petitioner there is sufficient cause for permitting the plaintiff to withdraw the suit with liberty to file a fresh suit. Sufficient cause in this case has been set out in detail, in the affidavit filed in support of the application. In this case, it is not as if, it is rejection of amendment alone is the ground that has been set out in the affidavit as a sufficient cause. It is not only the formal defect involved but also there are sufficient grounds for allowing the application as prayed for. In this case, it is not as if, it is rejection of amendment alone is the ground that has been set out in the affidavit as a sufficient cause. It is not only the formal defect involved but also there are sufficient grounds for allowing the application as prayed for. (18) IN a recent pronouncement in K. S. Bhoopathy and others v. Kokila and others, the Apex Court held thus:"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. 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. 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 afresh 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 in o. 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. "[italics supplied] (19) I am of the considered view that in the light of this pronouncement of the Apex Court the petitioner has to succeed as the petitioner had made out a case to grant the leave to withdraw the suit with liberty to file a fresh suit as there is sufficient ground and there is formal defect as well. (20) MR. T. S. Sivagnanam, learned counsel for the respondents was only harping upon the rejection of the amendment application and the said rejection is fatal to the second suit. According to Mr. T. S. Sivagnanam rejection of amendment application would constitute res-judicata. This contention cannot be sustained. The amendment sought for had been rejected while examining the application for amendment in the context as well as the conduct of the parties and for other reasons as is contemplated by O. 6, Rule 17 of the Act. According to Mr. T. S. Sivagnanam rejection of amendment application would constitute res-judicata. This contention cannot be sustained. The amendment sought for had been rejected while examining the application for amendment in the context as well as the conduct of the parties and for other reasons as is contemplated by O. 6, Rule 17 of the Act. Dismissal of amendment application will not constitute a bar, nor the petitioner is precluded from taking out an application for leave to withdraw the suit if the applicant satisfy the requirement of O. 23, Rule 1 (3), C. P. C. All that required is the petitioner has to satisfy the Rule, namely, O. 23, rule 1. As far as the present case is concerned, I am of the considered view that the petitioner has satisfied the requirements of the rute and the petitioner had made out a case for grant of leave. (21) HOWEVER it has to be pointed out that the petitioner having instituted the suit and having conducted the trial by examining the witnesses and at the fag end taking 0ut an application for amendment of the plaint cannot be granted leave to withdraw the suit as a matter of course, but he must be burdened with cost for the respondents being compensated. (22) ONE more objection advanced by Mr. T. S. Sivagnanam has to be considered nextly. But in my considered view the said objection is a misconception of O. 23, Rule 1. The learned counsel for the respondent contended that when the application for amendment had been rejected as belated, and beyond time, the plaintiffs suit if any will be barred by limitation and therefore the present application should not be entertained and no leave could be granted to get over the period of limitation. The contention overlooks Rule 2 of O. 23. Rule 2 of O. 23 provides that in any fresh suit instituted on permission being granted under Rule 1 of O. 23, the plaintiff shall be bound by the law of limitation for the same manner as if the first suit had not been instituted. Therefore Rule 2 of the O. 23 is a straight answer to the contention advanced by Mr. T. S. Sivagnanam. (23) IN the circumstances while setting aside the fair and decretal order of the Court below, this Court allow the Interlocutory Application in la. Therefore Rule 2 of the O. 23 is a straight answer to the contention advanced by Mr. T. S. Sivagnanam. (23) IN the circumstances while setting aside the fair and decretal order of the Court below, this Court allow the Interlocutory Application in la. No. 78 of 1999 in O. S. No. 326 of 1992 and grant leave to the petitioners to withdraw the suit with liberty to file a fresh suit on the very same cause of action but, subject to the petitioner paying a cost of Rs. 2,500 to the other side within four weeks from today and if the respondents decline to receive the same, it is open to the petitioner to deposit the same to the credit of the suit within twelve weeks from today. Consequently, connected C. M. P. is closed. Revision allowed.