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2014 DIGILAW 3302 (MAD)

Balasundara Achari v. Shanmugam

2014-09-12

K.RAVICHANDRA BAABU

body2014
Judgment : 1. The civil revision petition is filed against the order made in I.A.No.1387 of 2007 in O.S.No.104 of 2006 dated 25.10.2010 on the file of the District Munsif Court, Madurantagam, dismissing the petition filed by the petitioner herein under Order 23 Rule 1(3) CPC, seeking leave of the court to withdraw the suit with liberty to institute fresh suit on the same cause of action. 2. The petitioner as the plaintiff filed the above said suit initially for bare injunction. Subsequently, the plaint was amended and the relief of declaration and consequential relief of permanent injunction were introduced by way of such amendment. The trial has commenced and P.W.1 was examined in chief. After the cross-examination of P.W.1, the petitioner filed the above said application for withdrawal of the suit mainly by contending that there are formal defects in the plaint with regard to the measurement as well as the length and breadth of the suit property and the nature of possession. Therefore, the petitioner sought permission to withdraw the said suit with liberty to file fresh suit based on the same cause of action. 3. The court below rejected the said application on the ground that the petitioner has not shown sufficient cause for withdrawal of the suit and the defect is not a formal one. The court below has also pointed out that the nature of possession and failure to show length and breadth cannot be treated as formal defects. 4. Learned counsel appearing for the petitioner contended that the defects pointed out by the petitioner being a formal defect and that no prejudice would be caused to the defendants/respondents, if the petitioner is permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. In support of his submission, he relied on the decision made in 1998 (3) CTC 16 , Kokila v. K.S. Bhoopathy and 1998(III)CTC 454, Thangapandian v. Sri Muthumariamman Idol. 5. Though notice was served on the respondents, they have not chosen to appear before this Court either in person or through counsel. Their names are printed in the cause list. 6. In this case, the petitioner has filed the suit originally for bare injunction and thereafter, amended the plaint by seeking relief of declaration and consequential injunction. 5. Though notice was served on the respondents, they have not chosen to appear before this Court either in person or through counsel. Their names are printed in the cause list. 6. In this case, the petitioner has filed the suit originally for bare injunction and thereafter, amended the plaint by seeking relief of declaration and consequential injunction. No doubt, the petitioner has filed the application seeking permission to withdraw the suit with liberty to file fresh suit after examination of P.W.1 in chief and cross. But, at the same time, it is seen from the affidavit filed in support of the application that the petitioner being 75 years old person and also illiterate, has not given the correct details to his counsel for drafting the pleadings, more particularly, with regard to the measurement of the suit property and also the nature of enjoyment and the length and breadth of the suit survey number. Already, an amendment petition was filed and allowed whereby the relief of declaration was included. Therefore, instead of filing one more amendment petition, the petitioner thought fit to withdraw the suit and file a fresh one by narrating all the material facts and details. In my considered view, granting such permission is not going to prejudice the other side in view of the fact that the petitioner is seeking only the relief of declaration and injunction in respect of the suit property. 7. At this juncture, the decision of this Court made in 1998 (3) CTC 16 , Kokila v. K.S. Bhoopathy, relied on by the learned counsel may be relevant to be quoted. Paragraph No.4 reads as follows: “It is well known that when the court grants leave to file a fresh suit, the withdrawn suit has no existence in the eye of law and the parties are relegated to the same position which they occupied before the suit was brought. But, one fact situation has to be remembered in this case, viz., that it was the appellants who succeeded in the trial court in obtaining a decree and in the appeal against such decree by the respondents, which was partly allowed, the appellate court found that the pathway was common to both the parties, but the right was not gone into, title was not determined. In such a situation, withdrawal of the suit at the appellate stage although it may amount to withdrawal or nullification of the appellate Court's order, still not hurt any party other than the withdrawing plaintiffs, because they are also having the right to use the common pathway and the decree preventing installation of the machinery is nullified. Therefore, the contention that withdrawal will prejudice the respondents, has no basis. The apprehended prejudice can be safeguarded by keeping the right to use the pathway by both the parties till the disposal of the suit.” In fact, in the above said decision, the facts of the case would reveal that the withdrawal was permitted even at the appellate stage. 8. Likewise, in the other decision relied on by the learned counsel for the petitioner reported in 1998(III) CTC 454 , Thangapandian v. Sri Muthumariamman Idol, paragraph No.6 reads as follows: “6. I have carefully considered the submissions of learned counsel for the petitioners. The respondent has not entered appearance through counsel. I am satisfied that the facts and circumstances as presented in this case would indicate that the defect relating to the description is a formal defect only and that even otherwise, the fact that such a defect is likely to affect a proper and effective adjudication of all the claims in the suit and the further fact that plaintiff is a public institution, the affairs of which is managed from time to time by the administrator concerned, the lapse at some point of time committed by the person who instituted the suit, should not be allowed to be perpetuated to the detriment of a public institution. Consequently, the permission granted in this case by the court below on the view that the defects are in the nature of formal defects only, cannot be said to suffer from any patent error of law or perversity in the matter of exercise of its discretion by the court below. The petitioner/defendants would not in any way suffer or be prejudiced by the leave being granted. Since it is open to them to raise all objections on merits while defending the suit; whereas if the permission is not granted as prayed for, it will once and for all deny justice to a public institution. The petitioner/defendants would not in any way suffer or be prejudiced by the leave being granted. Since it is open to them to raise all objections on merits while defending the suit; whereas if the permission is not granted as prayed for, it will once and for all deny justice to a public institution. I am also of the view that in this case substantial justice has been rendered by the court exercising its discretion to grant permission under Order 23, Rule 1 C.P.C. and on that count also, no interference is called for with the order of the court below.” 9. Considering the facts and circumstances of the case and considering the above referred decisions of this Court, I am of the view that the petitioner is entitled to succeed in this civil revision petition. Accordingly, the civil revision petition is allowed and the order of the court below is set aside and consequently, I.A.No.1387 of 2010 in O.S.No.104 of 2006 is allowed. No costs. The connected miscellaneous petition is closed.