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2008 DIGILAW 2343 (MAD)

V. Rangarajan v. R. Chandrasekaran & Another

2008-07-09

M.SATHYANARAYANAN

body2008
Judgment :- 1. The revision petitioner is the plaintiff in O.S.No.131 of 2003 pending on the file of the Court of District Munsif-cum-Judicial Magistrate, Kodumudi. He challenges the order passed by the learned District Munsif-cum-Judicial Magistrate, Kodumudi, dismissing his application filed under Order XXIII Rule 7 of C.P.C., seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. 2. The revision petitioner herein filed the above suit praying for partition and separate possession of the suit properties. 3. The 1st respondent/1st defendant filed a written statement contending among other things that the suit is bad for partial partition and the valuation for the relief claimed in the plaint is not correct. 4. Therefore, in order to set right one of the defects, viz., that the valuation of the relief has not been done correctly, the plaintiff filed an application in I.A.No.566 of 2003 seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. 5. The said application was resisted by the 1st respondent contending that it has been filed solely with a view to prolong the litigation. 6. The lower Court, on consideration of the averments made in the petition and counter, has held that the defect, which has been shown by the revision petitioner/plaintiff, is neither a formal defect nor a sufficient ground to order the application. 7. Challenging the above said order of the learned District Munsif-cum-Judicial Magistrate, the present revision is filed. 8. Mr. T. Muruga Manickam, learned counsel appearing for the petitioner submits that the defect of not valuing the plaint properties properly will go deep into the root of the matter and therefore, the liberty sought for by the revision petitioner to withdraw the suit and file a fresh suit on the same cause of action is perfectly sustainable. 9. Even though the respondents in this revision were served with notices through Court, they have not entered appearance. 10. It is an admitted fact that no check slip has been issued by the concerned authority regarding the alleged low valuation. The averments in the written statement with regard to the improper valuation for the relief is vague. 11. The defect pointed out if any can be set right by the revision petitioner/plaintiff during the course of trial by letting in evidence. 12. The averments in the written statement with regard to the improper valuation for the relief is vague. 11. The defect pointed out if any can be set right by the revision petitioner/plaintiff during the course of trial by letting in evidence. 12. Therefore, this Court finds no error or illegality and error apparent on the face of the record in the impugned order passed by the learned District Munsif-cum-Judicial Magistrate, Kodumudi. Accordingly, the civil revision petition fails and the same is dismissed. However, there will be no order as to costs.