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2012 DIGILAW 3354 (MAD)

A. Subramani v. Rathinammal

2012-07-30

V.DHANAPALAN

body2012
Judgment :- 1. This Civil Revision Petition has been filed challenging the order dated 10.2.2012 in I.A.No.336 of 2011 in O.S.No.23 of 2010 on the file of the District Munsif and Judicial Magistrate, Pochampalli. 2. The revision petitioners are the plaintiffs in the suit O.S.No.23 of 2010 filed for declaration to declare title of the first plaintiff to the suit A schedule property and for permanent injunction against the defendants and also for declaring title of the second plaintiff to the suit B schedule property and for permanent injunction. The respondents/defendants filed written statement and contested the suit. 3. Earlier, the revision petitioners filed an application in I.A.No.419 of 2010 in the very same suit for amendment of pleadings. The said I.A. came to be dismissed by the trial Court, as against which, the petitioners have moved this Court in a Civil Revision Petition in C.R.P.(PD).No.3292 of 2011, which was dismissed by order dated 6.9.2011, confirming the order of the trial Court passed in the said I.A.No.419 of 2010. Thereafter, the petitioners have filed the present I.A. in I.A.No.336 of 2011 under Order 23 Rule 1 and Section 151 C.P.C. to permit the petitioners to withdraw the suit with liberty to file fresh suit for the same cause of action. The respondents have filed counter affidavit and the trial Court, on a consideration of the case, dismissed I.A.No.336 of 2011, as against which, the present C.R.P. is filed by the petitioners/plaintiffs. 4. Mr. C. Sanjai Baba, learned counsel representing Mr.V.Nicholas, learned counsel for the petitioners, consistently pleaded before this Court that the first petitioner purchased the properties from Dhanasekaran and sold one of the properties to the second petitioner and they wanted to amend the plaint and include the facts and hence, they earlier filed the petition for amendment in I.A.No.419 of 2010, which was dismissed, and on revision, the order of the trial Court was confirmed by this Court, and therefore, there is no other remedy for the petitioners but to withdraw the suit and to institute a fresh suit in respect of the suit properties by including the necessary parties stating all the correct facts, and therefore, the trial Court has not looked into the claim of the petitioners in proper perspective under Order 23 Rule 1 CPC in exercising inherent powers under Section 151 C.P.C. 5. Admittedly, the petitioners are the plaintiffs who filed the suit for declaration of title in respect of the suit A and B schedule properties and for permanent injunction. The suit has been contested by filing written statement and thereafter, the petitioners moved application for amendment of pleadings in I.A.No.419 of 2010, which was dismissed by the trial Court on 14.7.2011, against which, the petitioners have moved this Court in C.R.P.(PD).No.3292 of 2011, which was also dismissed on 6.9.2011, confirming the order of the trial Court in I.A.No.419 of 2010 and this Court held that the Court below dismissed the I.A. on the ground that the petitioners are introducing a new set of facts. That apart, it is also stated that though the petitioners have claimed that they have purchased the properties on 27.1.2010, the suit has been laid only later, i.e. on 22.2.2010. In such circumstances, the failure to state about the purchase made on 27.1.2010, which was within the knowledge of the petitioners, cannot be allowed. Taking such a view, the Court below dismissed the application preferred by the petitioners, and finding that there is no illegality or infirmity in the said order of the trial Court, this Court dismissed the C.R.P. confirming the order of the trial Court. 6. While that being the position, the petitioners have now filed the present I.A. in I.A.No.336 of 2011 praying to permit the petitioners to withdraw the suit with liberty to file fresh suit for the same cause of action. The trial Court, after taking note of the earlier dismissal of the C.R.P., which was dismissed holding that the petitioners were aware of the fact that the purchase of the properties was on 27.1.2010 and the suit has been laid only thereafter on 22.2.2010, and therefore, failure to state about the purchase made on 27.1.2010, which was within the knowledge of the petitioner, cannot be allowed, and therefore, this Court, after taking note of the petitioners' attempt by preparing the amendment petition and finding that the trial Court has not committed an error, confirmed the earlier order of the trial Court. 7. 7. Now, the case of the petitioners is that one Dhanasekaran has purchased the suit properties from Perumal Gounder, son of Chinna Muniya Gounder through sale deed dated 13.11.2008 and the first petitioner has purchased the same from the said Dhanasekaran on 5.3.2009 and sold a portion of the same to the second petitioner. While so, as the defendants, the wife and daughters of Perumal Gounder attempted to disturb the first petitioner's possession, the suit was filed for declaration of title to the suit lands and for permanent injunction. In the meantime, the petitioners came to know that one Muniyammal, daughter of Periyathai and Sevathan @ Periya Muniya Gounder are also having right over the suit properties and that in safer side, the petitioners have settled the claim of the said Muniyammal and paid a sum of Rs.2 lakhs to her and purchased her right also in the suit lands through a registered sale deed dated 27.1.2010 and thus, the petitioners' right and title to the suit properties were confirmed by that sale deed also. As there were subsequent events, to include the fresh pleadings of the same in the suit, the petitioners have filed the petition for amendment in I.A.No.419 of 2010, which was dismissed and which was also confirmed in the C.R.P filed before this Court and having no other remedy, the petitioners have filed the present I.A. to withdraw the suit with liberty to move a fresh suit for the same cause of action. 8. The said claim of the petitioners was resisted by the respondents by filing counter affidavit stating that in the light of the order passed by this Court in the earlier C.R.P. as against the order of dismissal of the petition for amendment of the pleadings, the petitioners cannot raise again the same by way of filing new suit, and therefore, the liberty sought for by the petitioners cannot be granted. 9. The trial Court, on a consideration of the case of the parties, dismissed the present I.A. in I.A.No.336 of 2011, by observing as under: “ TAMIL ” "1. 9. The trial Court, on a consideration of the case of the parties, dismissed the present I.A. in I.A.No.336 of 2011, by observing as under: “ TAMIL ” "1. Withdrawal of suit or abandonment of part of claim:- (1) At any time after the institution of suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such person is represented by a pleader by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion for the benefit of the minor or such other person. (3) Where the Court is satisfied: (a) that a suit must fall be 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 liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff: (a) abandons any suit or part of claim under sub-rule (1) or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of claim under sub-rule (1) or to withdraw under sub-rule (3) any suit or part of a claim without the consent of the other plaintiffs." “ TAMIL ” 10. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of claim under sub-rule (1) or to withdraw under sub-rule (3) any suit or part of a claim without the consent of the other plaintiffs." “ TAMIL ” 10. It is true that a plaintiff, under Order 23 Rule 1 C.P.C., at any time, after the institution of a suit, may as against all or any of the defendants, abandon his suit or abandon a part of his claim, provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. Therefore, the provisions of Order 23 Rule 1(1) CPC contemplates that at any time, the plaintiff, may as against all or any of the defendants, abandon the suit and therefore, the petitioners may attempt to institute fresh suit on withdrawing the earlier suit after taking liberty from the Court. But when once before the institution of the suit, the petitioners had the knowledge of the purchase of the properties on 27.1.2010, and after that only, the petitioners have instituted the suit and they being the plaintiffs know every facts and circumstances, and they have to take due diligence of amending the pleadings and thereafter, to proceed with the matter. Therefore, the petitioners' endeavour to amend the pleadings having been rejected by the trial Court, which was confirmed in the C.R.P. filed before this Court also, and this Court confirmed the order of the trial Court, holding that the purchase of the properties in question on 27.1.2010 itself is prior to the institution of the suit on 22.2.2010 and the petitioner had the knowledge about the said purchase and the failure to state about the purchase made on 27.1.2010 which was within the knowledge of the petitioners, cannot be allowed and taking such a view, and thus, this Court came to the above conclusion while confirming the order of the trial Court dismissing the I.A. for amendment of pleadings. 11. 11. In the light of the above facts, by way of the present I.A. , the petitioners are making an attempt to withdraw the suit and to have liberty to initiate fresh proceedings, in order to get rid of what are all the claim of the petitioners in the amendment pleadings, which cannot be allowed to hold, as the earlier order of the trial Court in I.A.No.419 of 2010, dated 14.7.2011, which was made for amendment under Order 6 Rule 17 C.P.C., was confirmed in the C.R.P. by this Court. 12. To examine the above position, it is worthwhile to refer two decisions of this Court reported in: (a) 2009 (6) CTC 800 (Thangavel Vs. Kuppana Gounder): "19. It is an axiomatic fact that no withdrawal will be allowed when the Defendant has acquired a certain right in the subject matter of the Suit, generally speaking, the leave sought for in regard to withdrawal of Suit with a liberty to file fresh Suit, such right is not an absolute one. Moreover where the withdrawal of earlier Suit is not in terms of ingredients of Order 3, Rule 1 of C.P.C., the benefit of Section 14 of Limitation Act cannot be extended when filing a fresh suit." and(b) 2010 (5) CTC 330 (Velusamy Vs. Chenniappan): "17. The provision in Order 23, Rule 1 of Civil Procedure Code is an exception to the common law principle of non Suit. On principle an application by the Plaintiffs under sub-rule (3) cannot be equated on a par with an application by them in exercise of the absolute liberty given to them under sub-rule (1). As a matter of fact, the grant of leave contemplated in sub-rule (3) of Rule 1 is at the discretion of the Court. However, such a discretion must be exercised by a Court of law with care and circumspection, in the considered opinion of this Court. A Court of law ought to apply its mind while granting permission to withdraw the Suit with a liberty to file a fresh one. Importantly, permission under sub-rule (3) can be accorded only if the conditions specified therein are satisfied. A mere statement by the Plaintiffs that there are formal defects in the frame and form of Suit are not enough, as opined by this Court. Importantly, permission under sub-rule (3) can be accorded only if the conditions specified therein are satisfied. A mere statement by the Plaintiffs that there are formal defects in the frame and form of Suit are not enough, as opined by this Court. Therefore, there must be an express finding by a Court of law that the Suit would fail by reason, of some formal defect or that there are other sufficient reasons for granting the leave to file a fresh Suit as per decision in Lalluv. Board of Revenue, AIR 1973 Allahabad 195." 13. Further, this Court in the above decisions held that the plaintiffs are estopped from projecting the I.A. under Order 23 Rule 1 CPC praying for permission to withdraw the suit and to file a fresh suit on same cause of action and what cannot be achieved by earlier I.A. to amend the plaint, cannot be achieved by grant of liberty to withdraw the suit to file fresh suit on same cause of action and withdrawal of suit cannot be allowed when defendant has acquired certain right in subject matter of the suit. 14. In the light of the above stated position of law and taking note of the earlier order of this Court made in C.R.P.(PD).No.3292 of 2011, dated 6.9.2011, confirming the order of the trial Court in I.A.No.419 of 2010 in O.S.No.23 of 2010, dated 14.7.2011, and the present claim of the petitioner for withdrawing the suit and to go for fresh pleadings, would amount to recalling the earlier order of this Court and therefore, the trial Court has rightly come to the conclusion that it is not proper to permit the petitioners to withdraw the present suit with permission to institute a fresh suit. Accordingly, the view of the trial Court is in no way, in my considered opinion, does not suffer from any infirmity or illegality and there is no scope to interfere with the same, as there is no manifest error committed by the trial Court. 15. In the result, the CRP is dismissed. Accordingly, the view of the trial Court is in no way, in my considered opinion, does not suffer from any infirmity or illegality and there is no scope to interfere with the same, as there is no manifest error committed by the trial Court. 15. In the result, the CRP is dismissed. However, this order shall not prevent the petitioners from contesting the suit by letting in oral and documentary evidence and what are all the contentions raised before this Court are always available to be agitated before the trial Court by availing of the opportunity, and it is for the petitioners to contest the pending suit in the manner known to law. No costs. The Miscellaneous Petition is closed.