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2005 DIGILAW 661 (MAD)

Vijayakumar & Another v. Vijayakumari & Others

2005-04-16

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Sec.115 C.P.C against the order of Principal District Munsif, Sivaganga dated 31.03.2002 made in I.A.No.78 of 2003 in O.S.No.70 of 2001, as stated therein.) This Civil Revision Petition is preferred against the order of Principal District Munsif, Sivaganga dated 31.03.2003 made in I.A.No.78 of 2003 in O.S.No.70 of 2001, allowing the Petition under Order 23 Rule 1 C.P.C for withdrawal of the Suit and giving liberty to the Plaintiff to file fresh Suit on the same cause of action. 2. The relevant facts necessitated for disposal of this Civil Revision could briefly be stated thus: - O.S.No.70 of 2001:- The Suit Property relates to 00182.0 Sq.Mt. Vacant site in S.No.12/1, Ranganachiyar Street, Sivagangai Town, Sivagangai Taluk and District. The Plaintiff and the Defendants are related as under:- ----------------------------------- | | Gowri Muthu Amaravathy | | | | | Radhakrishnan (D-4) | ------------------------------------------------------- | | | | | Vijayakumar Jayakumar Vijayakumari Jayakumari Kanna Bai D-1 D-2 Plaintiff D-3 3. The case of the Plaintiff is that she has been in possession of the Suit Property as per Family Arrangement. She is in enjoyment of the Suit Property. According to the Plaintiff, as per the compromise Decree in O.S.No.197 of 1981, the Suit Property was allotted to the Plaintiff and the Defendants and their Paternal Aunt – Amaravathi. After the death of Amaravathi, her son – Radhakrishnan became entitled to the property. In view of oral partition between the Plaintiff and the Defendants, the Suit Property and other items of Properties were divided. In the Family Arrangement and with the consent of the Family Members, the Plaintiff is in possession and enjoyment of the Suit Property. In lieu of the shares of Defendants and other sharers, the Plaintiff had paid the amount. In recognition of her possession and enjoyment of the Suit Property, the Tahsildar, Sivagangai had also issued Patta in the name of the Plaintiff. The Defendants have no Right or Title in the Suit Property. However, they are openly proclaiming to interfere with the possession and enjoyment of the Suit Property by the Plaintiff. Hence the Plaintiff is constrained to file O.S.No.70 of 2001 for Permanent Injunction. 4. Strongly resisting the Suit, the Defendants 1 and 2 have filed Written Statement, claiming exclusive right in the Suit Property. However, they are openly proclaiming to interfere with the possession and enjoyment of the Suit Property by the Plaintiff. Hence the Plaintiff is constrained to file O.S.No.70 of 2001 for Permanent Injunction. 4. Strongly resisting the Suit, the Defendants 1 and 2 have filed Written Statement, claiming exclusive right in the Suit Property. According to the Defendants, as per the Compromise Decree in O.S.No.197 of 1981, the Defendants 1 and 2 are entitled to the Suit Property. Further case of the Defendants is that on 16.08.1991, in lieu of the share of the Plaintiff and other Sisters, the Father had executed the Settlement Deed in favour of the Plaintiff and other Sisters. The Suit Property was not included in any of those Settlement Deeds. The Defendants have put up Engineering and Mechanic Work Shop in the Suit Property. A portion of the Suit Property has also been let out. The Defendants 1 and 2 have filed O.S.No.323 of 1984 on the file of Sub-Court, Sivagangai against the Sivagangai Municipality. Later, the case has been transferred to District Munsif Court, at Manamadurai and re-numbered as O.S.No.81 of 1989. The said Suit was decreed in favour of the Defendants on 11.08.1999. The Defendants 1 and 2 have been in possession and enjoyment of the Suit Properties. They have also effected partition amongst themselves, dividing the properties, including the Suit Property. 5. The Written Statement was filed on 05.11.2001. On the above pleadings, issues were framed; parties adduced evidence. After completion of the Trial, the case was posted for argument on 06.02.2003. 6. I.A.No.70 of 2001:- When the case was posted for arguments, the Plaintiff has filed this Petition under Order 23 Rule 1 C.P.C seeking permission of the Court to withdraw the suit with liberty to file a fresh suit on the same cause of action. In the supporting Affidavit, the Plaintiff has averred that the Suit Property allotted to her in oral Partition, with the consent of the Defendants, the Plaintiff has been in possession and enjoyment of the properties, including the Suit Property. However, since the Defendants have denied her individual right in the Suit Property, it is just and necessary for the Plaintiff to claim her share by filing the Suit for Partition. However, since the Defendants have denied her individual right in the Suit Property, it is just and necessary for the Plaintiff to claim her share by filing the Suit for Partition. On those grounds, the Plaintiff has filed the petition seeking the permission of the Court to withdraw the Suit with liberty to file fresh suit on the same cause of action. 7. The Application was opposed by the Defendants by filing elaborate counter Statement. Further, the Second Defendant has also filed elaborate affidavit setting forth the happenings between the parties and referring to the Partition Deed amongst the family members, including the Plaintiff and also the Partition Deed between the Defendants 1 and 2. 8. By the cryptic order, the Trial Court / District Munsif, Sivaganga has allowed the Application mainly on the grounds: - (i) that the Defendants have not specifically denied the oral partition set forth by the Plaintiff; (ii) that there is no effective partition between the Parties by metes and bounds regarding the Suit Property and other family Properties. Since there is no effective partition effected between Brothers and Sisters to avoid multiplicity of proceedings, it has been held that it is just and necessary to give permission to the Plaintiff to withdraw the Suit with liberty to file a fresh suit claiming partition. 9. Assailing the Impugned Order in allowing the Petition filed under Order 23 Rule 1 C.P.C. the Revision Petitioners have preferred this Civil Revision Petition. The respondents have been served, but not entered appearance. Their names have been printed in the cause list. Heard the submissions of the learned counsel for the Revision Petitioners / Defendants 1 and 2. 10. Assailing the impugned order, learned counsel for the Petitioners / Defendants 1 and 2 has submitted that the condition under Order 23 Rule 1(3) C.P.C has not been complied with and the Trial Court erred in allowing the Petition. It is further submitted that the Trial Court has not kept in view that the trial has been completed and the Petition has been filed belatedly. It is further submitted that the Plaintiff changing her stand when the case was posted for arguments and the petition, seeking to file the fresh suit cannot be countenanced. The impugned order is assailed contending that there is no formal defect in the Suit nor sufficient ground for withdrawal is made out by the Plaintiff. 11. It is further submitted that the Plaintiff changing her stand when the case was posted for arguments and the petition, seeking to file the fresh suit cannot be countenanced. The impugned order is assailed contending that there is no formal defect in the Suit nor sufficient ground for withdrawal is made out by the Plaintiff. 11. It is further submitted that when the Defendants have specifically denied the Title of the Plaintiff, the learned District Munsif erred in saying that the Defendants have not specifically denied the oral partition. Submitting that the Trial Court has not appreciated the mandated conditions of Order 23 Rule 1(3) C.P.C, learned counsel has relied upon unreported decision in C.R.P.No.1843 of 1999, wherein learned Single Judge has referred to the decision reported in K.S.BHOOPATHY AND OTHERS ..VS.. KOKILA AND OTHERS ( 2000 (5) S.C.C. 458 ). 12. Upon consideration of the submissions by the Revision Petitioners and other materials on record, the following points arise for consideration in this Revision Petition:- (i) Whether the condition under Order 23 Rule 1(3) C.P.C are satisfied to enable the Plaintiff to withdraw the Suit; (ii) in allowing the Plaintiff to withdraw the Suit and granting liberty to file a fresh Suit on the same cause of action, whether there is proper exercise of discretion by the Trial Court? 13. Even at the outset, the factual incorrect findings recorded by the Trial Court in the impugned order is to be pointed out. In the Plaint, the Plaintiff has claimed Right and Title in the Suit Property pursuant to a Family arrangement and that she has paid the amount to the Defendants in lieu of their share in the suit Property and that by consent by the Defendants and other sharers, she has been in exclusive possession and enjoyment of the Suit Property. In paragraph 5 of the Written Statement, the Defendants have specifically denied any such family arrangement and consent given by them. The relevant averments in paragraph 5 of the Written Statement is as follows: - "...nkYk; thjp Fwpg;gpLtJ nghy ve;jtpjkhd FLk;g Vw;ghLk; eilbgwtpy;iy/ me;j mog;gilapy; rk;kjj;jpd; mog;gilapy; thjp jdpj;J ghj;jpak; mile;J mDgtk; bra;J tutpy;iy/ me;j mog;gilapy; jdpj;J gl;lh Vw;gltpy;iy..." While so, the finding of the District Munsif that "...tha;bkhHp ghfg;gphptpidia kWj;J jdf;F jhthr; brhj;jpy; bghJg; ghj;jpa mDgtk;jhd; cs;sbjd;W vjph; tHf;Fiuapy; Fwpg;gpl;Ls;sjhf kDjhuh; Twpa[s;s nghjpYk; mjw;F vjph;kDjhuh; jug;gpy; Ml;nrgiz vJt[k; bjhptpf;ftpy;iy..." is factually incorrect. The District Munsif erred in saying that the Defendants have not specifically denied the oral partition and has not raised any specific objection regarding the same. 14. Likewise, the Trial Court has further found that there was no partition in respect of the Suit Property and other properties. The relevant finding reads as follows: - "...vdnt jhthr;brhj;J cl;gl kw;w brhj;Jf;fs; thjpf;Fk; gpujpthjpfSf;Fk; ,ilapy; rhpahf KGikahd ghfk; Vw;gltpy;iybad;gJ bjhpa tUfpwJ/ thjpf;Fk; gpujpthjpfSf;Fk; ,d;Dk; g{h;tPfr; brhj;Jf;fs; cs;sbjd;gjhYk;. ,U jug;gpdh;fSk; rnfhjhp. Rnfhjuh;fs; vd;gjhYk; ,U jug;gpdUf;Fk; Kiwahf ghfk; Vw;gltpy;iy bad;gjhYk; ..." The above finding that there has been no partition in the Family regarding other Items of Family Properties is factually incorrect without taking note of the innumerable documents produced by the Defendants. From the materials on record, it is clear that on 01.09.1997, there was Partition (Ex.B.3-Partition Deed) between the Plaintiff and the Defendants and other Sisters – Kannabai and another. In the said Partition, the Plaintiff – Vijayakumar had been shown as the Fourth Party and "D-Schedule" property was allotted to her. Ex.B.4 – Partition Deed was marked only through the Plaintiff during her cross-examination. After Ex.B.3-Partition Deed, the Defendants 1 and 2 have divided the suit Properties and other Items of Properties by Ex.B.9-Partition Deed dated 11.08.1999. The Trial Court has grossly erred in not taking into consideration these striking documents, evidencing partition. The above finding of the Trial Court that there was no partition in respect of the family property is factually incorrect and cannot be sustained. 15. The power to grant permission for withdrawal of the Suit is to be exercised subject to the conditions prescribed under Order 23 Rule 1 C.P.C. The Court is to discharge the duty mandated under the provision of the Code after 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. The permission could be granted under Order 23 Rule 1 (3) C.P.C where the Court is satisfied - (a)that a suit must fail by reason of some formal defect, or (b)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; it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with a liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. The provision cannot be used as a ruse to avoid the decree though liberty may be given to the Plaintiff to withdraw the Suit at any time after the institution of the suit, yet it cannot be considered to be so absolute to permit or to encourage withdrawal of the suit when it causes prejudice to the Defendants. 16. Bearing these principles in mind, it is to be considered whether the conditions mandated under Order 23 Rule 1(3) C.P.C are complied with or not. As noted earlier, sub-rule (3) of Order 23 Rule 1 C.P.C provides that the Court is satisfied that a suit must fail by reason of "some formal defect" or that there are sufficient grounds the Court may grant the permission to withdraw the Suit with liberty to institute a fresh suit in respect of same subject matter of the Suit. The expression "some formal Defect" must be deemed to connote every kind of defect, which does not affect the merits of the case. In this case, there is no such formal defect by reason of which the Suit must fail. 17. Let us consider whether "other sufficient grounds are made out to withdraw the Suit". The Plaintiff has put forth a definite case that the Suit Property was allotted to her in the oral partition and that she paid the amount to the Defendants in lieu of their shares and that with the consent of the Defendants, other sharers, the Plaintiff has been in possession and enjoyment of the Suit Properties. The defendants have catogorically denied any such oral partition and family arrangement and their consent for the Plaintiff's enjoyment. The Defendants have also denied grant of patta in the name of the Plaintiff. The defendants have catogorically denied any such oral partition and family arrangement and their consent for the Plaintiff's enjoyment. The Defendants have also denied grant of patta in the name of the Plaintiff. They have also put forth the plea that even if any such patta was obtained, the same must have been obtained behind their back and not binding on the Defendants. In support of their contention that there was already family partition effected, the Defendants have produced Ex.B.4 – Partition Deed between the Defendants and Plaintiffs and other Sisters. Thereafter, there was partition between the Defendants as per Ex.B.9-Partition Deed dated 11.08.1999. In the Suit Property, the Defendants have also put up Engineering works and mechanic work, showing running of mechanic work shop and Engineering works. Ex.B.8- Commissioner Report has been produced. 18. Further, definite case of the defendants is that in the Compromise Decree in O.S.No.197 of 1981, Eastern Portion of the Suit Property was allotted to their Paternal Aunt – Amaravathi; Middle portion was allotted to the Second Defendant and the Western Portion was allotted to D-1. Thereafter, the Defendants have also filed the Suit in O.S.No.323 of 1984 on the file of Sub-Court, Sivagangai against the Sivaganga Municipality, which was transferred to the District Munsif Court, Manamadurai and renumbered as O.S.No.81 of 1989, which suit was decreed in favour of the Defendants on 11.08.1999. 19. The Defendants have also produced Settlement deeds dated 16.08.1991 in favour of the Plaintiff and other Sisters Kannabai and Jayakumari executed by their Father, settling some of the family properties in favour of the Daughters. Ex.B.3 is the Settlement Deed dated 16.08.1991 in favour of the Plaintiff. Likewise, Exs.B.4 and Ex.B.5- Settlement Deeds dated 16.08.1991 are infavour of ther Sisters Kannabai and Jayakumari executed by the Father settling certain Items of Properties. In Ex.B.3 – Settlement Deed in favour of the Plaintiff, it is stated that in lieu of her share – cd;ghf 20. Faced with these evidence, there is no sufficient reason for withdrawal of the suit on the ground that the Plaintiff is to file a fresh suit seeking for partition regarding the entire family properties. In Ex.B.3 – Settlement Deed in favour of the Plaintiff, it is stated that in lieu of her share – cd;ghf 20. Faced with these evidence, there is no sufficient reason for withdrawal of the suit on the ground that the Plaintiff is to file a fresh suit seeking for partition regarding the entire family properties. When the Plaintiff is faced with such innumerable documentary evidence produced by the Defendants, the Trial Court ought not to have allowed the Application filed under Order 23 Rule 1 (3) C.P.C granting permission for withdrawal of the Suit with liberty to file a fresh suit for partition on the same cause of action. Such permission for withdrawal of the Suit with liberty to file a fresh suit would operate to the prejudice of the Defendants. No sufficient grounds are made out for granting permission to the Plaintiff to withdraw the suit. 21. Under Order 23 Rule 1 C.P.C, petition could be filed "at any time". No doubt, the words "at any time" means at any stage after the institution of the Suit and before its trial. But it does not mean that the Plaintiff can be permitted to withdraw the suit at the end of the trial when the suit has been posted for arguments. The Written Statement was filed as early as on 05.11.2001, denying the family arrangement and any consent set forth by the Plaintiff, after the issues were framed, the parties adduced evidence. When the case has been posted for arguments on 06.02.2003, at that stage, the petition was filed for withdrawal of the suit. The Plaintiff cannot be allowed to withdraw the suit at that stage when recording of evidence was completed and the suit was posted for arguments. Grant of leave at this stage would cause the Plaintiff to avoid the decree, which may be passed against her and seek fresh adjudication of the controversy by filing a fresh suit for partition of family properties. It would result in the contesting Defendants loosing the advantage of adjudication of the dispute when the case has been adjourned for arguments. 22. Holding that the Plaintiff cannot be permitted to withdraw the suit in the appellate stage and elaborately considering the purport of Order 23 Rule 1 C.P.C in the decision reported in K.S.BHOOPATHY AND OTHERS ..VS.. It would result in the contesting Defendants loosing the advantage of adjudication of the dispute when the case has been adjourned for arguments. 22. Holding that the Plaintiff cannot be permitted to withdraw the suit in the appellate stage and elaborately considering the purport of Order 23 Rule 1 C.P.C in the decision reported in K.S.BHOOPATHY AND OTHERS ..VS.. KOKILA AND OTHERS ( 2000 (5) S.C.C. 458 ) the Supreme Court has held thus: "....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 Order XXIII 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 Appellant / second Appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII 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 the large accumulation of cases in lower courts and inordinate delay in disposal of the cases....." The above observation was regarding withdrawal of the suit in the appellate stage. The same principle applies to the case in hand when the case has been adjourned for hearing the arguments. In the decision reported in SINGARAVEL PADAYACHI ..VS.. The same principle applies to the case in hand when the case has been adjourned for hearing the arguments. In the decision reported in SINGARAVEL PADAYACHI ..VS.. NAGAMMAL AND OTHERS ( 1996 (1) L.W. 430 ) also the learned Single Judge has declined to permit the Plaintiff to withdraw the suit as the Application was filed after the evidence was over. 23. Either on facts or on law, the Respondent / Plaintiff has not made out a case of sufficient grounds for withdrawing the suit under Order 23 Rule 1 C.P.C. There are no sufficient reasons for allowing the Plaintiff to withdraw the suit with liberty to file a fresh suit for the same cause of action. If such permission is granted to the Plaintiff to adjudicate the matter afresh by filing the suit for partition, great prejudice would be caused to the Defendants. The evidence and materials on record and other facts were not properly appreciated by the Trial Court. The order of the Trial Court, granting permission to the Plaintiff to withdraw the suit is perverse and erroneous and cannot be sustained. Hence, the order, allowing the petition, permitting the Plaintiff to withdraw the suit is to be set aside. 24. For the reasons stated above, the order passed by the Principal District Munsif, Sivaganga dated 31.03.2002 made in I.A.No.78 of 2003 in O.S.No.70 of 2001 is set aside and this Civil Revision Petition is allowed. The Principal District Munsif, Sivaganga is directed to restore the suit in O.S.No.70 of 2001 on its file. On the available evidence on record and after affording sufficient opportunities to both the parties, the Trial Court is directed to dispose of the Suit in accordance with law within a period of one month from the date of receipt of copy of this order. The Trial Court is instructed not to be influenced by any of the views expressed in this order while appreciating the facts and evidence in disposing the suit. In the circumstances of the case, there is no order as to costs.