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2003 DIGILAW 78 (MAD)

Perumayee v. K. Arumugam and others

2003-01-23

M.KARPAGAVINAYAGAM

body2003
ORDER: The above civil revision petition is filed against the order dated 24.7.2001 made in I.A. No.174 of 2001 in O.S. No.67 of 2000 on the file of the District Munsif, Rasipuram, whereby the trial Court, has rejected the request of the petitioner made in the abovesaid interlocutory application to permit the petitioner to withdraw the suit with a liberty to file fresh suit on the same cause of action under O.23, Rule 1 read with Sec.115 of C.P.C. 2. The petitioner herein has filed a suit in O.S. No.67 of 2000 on the file of the District Munsif’s Court at Rasipuram for permanent injunction restraining respondent to 1 to 3 from alienating the suit property in favour of the fourth respondent, or anyone under him, or to any third party till the suit property 1 to 3. The suit property is situated in Survey No.166/1 in Thoppalangadu Namagiripettah, Sub-Registration District, Rasipuram Taluk. 3. The case of the petitioner was that the suit property was originally belonged to one Pavayee Ammal, the mother-in-law of the petitioner and the mother of respondent No.1 to 3. The said Pavayee died intestate. After the death of Pavayee, the petitioner and the first respondent were in possession of the suit property and the third respondent had relinquished her share in favour of the petitioner. Respondents 1 to 3 entered into sale agreement in respect of the suit property with the fourth respondent. Subsequently, the fourth respondent was interfering with the joint possession of the suit property. The respondents resisted the suit inter alia on the ground that the respondent 1 to 3 had 3/4th right over the suit property. 4. It is the further case of the petitioner that after the filing of the suit, respondents 1 to 3 executed a sale deed dated 8.6.2000 in favour of the fourth respondent. Therefore, the petitioner filed a suit for partition in O.S. No.407 of 2000 on the file of the Subordinate Judge, Namakkal against the respondents. In view of the abovesaid circumstances, the petitioner herein filed the abovesaid interlocutory application in I.A. No.174 of 2001 under O.23, Rule 1 of the Civil Procedure Code seeking the permission of the Court to withdraw suit with liberty to file a fresh suit with the same cause of action. 5. In view of the abovesaid circumstances, the petitioner herein filed the abovesaid interlocutory application in I.A. No.174 of 2001 under O.23, Rule 1 of the Civil Procedure Code seeking the permission of the Court to withdraw suit with liberty to file a fresh suit with the same cause of action. 5. The trial Judge after considering the materials before him and the arguments made, dismissed the applications by order dated 24.7.2001. The correctness of the said order is now put in issue in the present revision petition. 6. When the matter is taken up for orders, the learned counsel for the petitioner very fairly submitted that though the relief sought for in I.A. No.174 of 2001 is very widely couched, which in terms, comes within the purview of O.23, Rule 1(3) of the Civil Procedure Code, it is suffice if the petitioner is permitted to withdraw the suit filed without any liberty being given for filing a fresh suit with the same cause of action, for which course of action there cannot be any impedient on the simple reason O.23, Rule 1 of the Civil Procedure Code itself provides that at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. The proviso to the Rule is not applicable since there are no minors in this case. 7. In view of the submission made by the learned counsel for the petitioner and in the light of the statutory provision, the order of the trial Court is modified to the effect that the petitioner is permitted to withdraw the suit under O.23, Rule 1 of C.P.C. without there being any liberty given to the petitioner to file a subsequent suit with the same cause of action. With this observation, the civil revision petition is dismissed. However, there is no order as to costs. Consequently the connected C.M.P. is also closed.