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2006 DIGILAW 1817 (MAD)

N. Thiyagarajan & Another v. Veerattanathan

2006-07-19

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (Prayer: This Civil Revision Petition has been filed against the fair and decretal order dated 14.06.2005 passed in I.A.No.2480/2004 in O.S.No.288/2002 on the file of the Additional District Munsif Court, Guddalore.) The order passed in I.A.No.2480/2004 in O.S.No.288/2002 on the file of the Additional District Munsif Court, Guddalore, is being challenged in this Revision. The plaintiff in O.S.No.288/2002 has filed the said petition under Order 23 Rule 1(3) of C.P.C. to permit the plaintiffs to withdraw the suit with liberty to file fresh suit on the same cause of action. 2. The learned Additional District Munsif, who heard the petition, after going through the rival contentions, had dismissed the petition. Aggrieved by the orders of the learned Additional District Munsif, the plaintiffs have filed this revision. The reasoning given for the withdrawal of the suit was that the respondent relied on a sale deed dated 2.7.1920 in favour of Sivabhushnam, the younger brother of plaintiffs' grand father's. The Defendant also relied on a 50 years old release deed. The plaintiffs would contend that these documents were not explained in the plaint and the defects cannot be removed by way of amendment. So, on these grounds, according to the plaintiffs formal defects, they want to withdraw the plaint with liberty to file fresh suit on the same cause of action. The relief asked for by the plaintiffs in the revision cannot be granted for the following reasons. 3. In the suit O.S.No.288/2002, the trial is over and it stands posted for arguments. The suit was filed in the year 2002. I.A.No.2480/2004 was filed in the year 2004. For nearly two years, the Defendant has come to the Court and faced the trial. The learned counsel appearing for the revision petitioner relied on a case reported in 1992(1) LW 100 (A.P.S.Bahurudeen and another Vs. Antony and two others) and contended that if the defects pointed out by the plaintiffs are only formal in nature, they should be allowed to withdraw the suit under Order 23 Rule 1(3) of C.P.C. The suit was filed for declaration and consequential injunction in respect of a wakf property. Only in the Second Appeal stage, the plaintiffs had filed a petition under Order 23 Rule 1(3) of CPC to permit them to withdraw the suit. Only in the Second Appeal stage, the plaintiffs had filed a petition under Order 23 Rule 1(3) of CPC to permit them to withdraw the suit. It was held in that case that there was no formal defects as contended by the plaintiffs and there was no justification for depriving the Defendant of the benefit of a finding obtained after full trial and consequently petition for withdrawal was dismissed. 4. The learned counsel for the respondent relied on a case reported in 2003(4) LW 453 (Duraikannu & others Vs. Malayammal) wherein it has been held as follows:- "Formal defect means a defect of form, which is prescribed by Rules or Procedure. A defect which goes to the root of the plaintiff's claim is not a formal defect. The formal defect may be omission to obtain permission of Court to file the suit, misjoinder of parties or cause of action, failure to disclose cause of action for the Plaint, erroneous valuation of the subject matter of the suit and institution of a suit in a Court which has no jurisdiction to entertain it. The other sufficient ground is that the defect must not be due to plaintiff's own fault, hence the expression 'other sufficient ground' should be construed 'ejusdem generis' with formal defect. The failure of the plaintiff to prove his own case is no ground for allowing him to withdraw his suit with liberty to file another suit on the same cause of action." The learned trial Judge elaborately discussed the rival contentions of the parties and has come to a definite conclusion that plaintiffs are not entitled to withdraw the suit and to file another suit on the same cause of action. At any stage the plaintiff is entitled to withdraw the suit. But in the peculiar circumstances of this case, the plaintiffs are not entitled to withdraw the suit with liberty to file a fresh suit on the same case of action because the defect pointed out by the plaintiffs is not a formal one as held in 2003(4) LW 453 . The plaintiff was given an opportunity to file necessary application for amending the plaint after the dismissal of I.A.No.16657/90. The documents relied on by the plaintiffs and Defendant for establishing their right is the sale deed dated 2.7.1920 in favour of the younger brother of the petitioners' grand father. The plaintiff was given an opportunity to file necessary application for amending the plaint after the dismissal of I.A.No.16657/90. The documents relied on by the plaintiffs and Defendant for establishing their right is the sale deed dated 2.7.1920 in favour of the younger brother of the petitioners' grand father. But even after the receipt of those documents, the plaintiffs have not chosen to amend the prayer in the plaint on the basis of those documents. Without doing so, now the plaintiffs have filed I.A.No.2480/2004 under Order 23 Rule 1(3) of CPC to withdraw the suit with a liberty to file another suit cannot be sustainable as correctly held by the learned trial judge. 5. As rightly held by the learned trial Judge, the defects pointed out in the petition for withdrawal are not formal defects in my opinion too. Under such circumstance, I find no merit in the Civil Revision Petition and accordingly, the Civil Revision Petition is hereby dismissed. No costs. Consequently, connected CMP is also dismissed. The trial Court is directed to expedite the trial and dispose of the matter within one month from the date of receipt of copy of this order.