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2014 DIGILAW 3822 (MAD)

Manivannan v. P. Ambal Devi

2014-10-14

S.VIMALA

body2014
Judgment 1. Defendants 2 to 5, who are the Legal Representatives of the deceased first defendant, are the revision petitioners. The plaintiff is the respondent. 2. A suit was filed in O.S.No.480 of 2000 by the plaintiff seeking the relief of injunction against the defendants. 2.1. The plaintiff originally filed I.A.No.971 of 2009 in O.S.No.480 of 2000, seeking amendment of the plaint, adding the relief of declaration and recovery of possession. That application was dismissed. Challenging the same, a Civil Revision Petition was filed in CRP No.2856 of 2010. The said Civil Revision Petition was dismissed considering the following facts and circumstances:- (a) The suit has been filed on 24.08.2000 and written statement was filed on 03.09.2000. (b) In the written statement, it has been specifically stated that the defendants have purchased the property and they are in possession and enjoyment of the same. (c) The application for amendment has been filed in the year 2009 stating that the defendants have constructed a compound wall and claimed that they are in the possession of the property. 2.2. On these factual aspects, taking into account the proviso to Order 6 Rule 17 CPC and finding that the application for amendment has been filed after the entire evidence was over and when it is posted for arguments, the civil revision petition was dismissed, holding the dismissal by the Court below is justified. 3. Thereafter, the plaintiff filed I.A.No.69/2012, seeking permission to withdraw the suit, with liberty to institute a fresh suit on the same cause of action. That petition was allowed. Challenging the same, the defendants 2 to 5 have preferred this Civil Revision Petition. 3.1. The justifiability or otherwise of the reasons, which persuaded the court below, to allow the application for withdrawal of the suit, need to be analysed. 3.2. It is the grievance of the learned counsel for the revision petitioner that the provisions of Order 23, Rule 1 of CPC which is based on public policy has been misused by the plaintiff to harass the defendant and the Court below ought not to have allowed the petition especially when the application for amendment has been rejected up to the level of the Hon'ble High Court. 4. It is the contention of the learned counsel for the respondent that the revision petition is not maintainable. 4. It is the contention of the learned counsel for the respondent that the revision petition is not maintainable. The learned counsel for the revision petitioners submitted that the revision petition is maintainable in view of the decision reported in (2006) 7 SCC 452 (Vidyodaya Trust and others v. R.Mohan Prasad and Others). Discussing Section 115 of the CPC, the Court held that the revision lies as against an order which would have finally disposed of the suit. 4.1. This Court is of the view that, so far as the case on hand is concerned, this revision petition is as against the order passed, permitting withdrawal of the suit. This order, permitting withdrawal, would have finally disposed of the suit and therefore, this Revision Petition is maintainable. 4.2. Next contention of the learned counsel for the revision petitioners is that, even assuming that the revision petition is not maintainable, the supervisory power of this Court, existing under Article 227 of the Constitution of India, cannot be disputed and therefore, the Revision Petition is maintainable. Supporting this proposition, the decision reported in (2010) 8 SCC 329 (Shalini Shyam Shetty & another v. Rajendra Shankar Patil) is relied upon, where-under it has been held as under:- “48. The subsequent Constitution Bench decision of this Court on Article 227 of the Constitution, rendered in the case of State of Gujarat etc. vs. Vakhatsinghji Vajesinghji Vaghela (dead) his legal representatives and others reported in AIR 1968 SC 1481 also expressed identical views. Justice Bachawat speaking for the unanimous Constitution Bench opined that the power under Article 227 cannot be fettered by State Legislature but this supervisory jurisdiction is meant to keep the subordinate tribunal within the limits of their authority and to ensure that they obey law“. 4.3. Contending thatthe amendment in Section 115 CPC cannot affect the jurisdiction under Articles 226 and 227 of the Constitution of India, the learned counsel for the revision petitioners relied upon the decision reported in (2003) 6 SCC 675 (Surya Dev Rai v. Ram Chander Rai & Others) where-under it has been held thus:- “38. .... Such like matters frequently arise before the High Courts. .... Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- (1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.“ 4.4. Contending that the parameters to be looked into while permitting the petitioner to withdraw the suit has not been followed by the Court below and therefore, the order passed permitting withdrawal is not valid, the learned counsel for the revision petitioners relied upon the decision reported in 2011-4-L.W.213 (Family Manager Dr. N.Gunasekaran v. N.Santha and another), where-under it has been held as under:- “13. From the above, it is very clear that the Court can give liberty to institute a fresh suit when: 1. the suit must fail by reason of some formal defects; and 2. there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit clam or part of the claim. 14. Therefore, when an application is filed under Order 23 Rule 1(3) CPC, the court has to find out whether any one of the two reasons spelt out under Order 23 Rule 1(3) CPC are present and only when anyone of these two reasons get attracted, liberty can be given for withdrawing the suit and to file a fresh suit. ..... 19. .... “8. 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.” ..... 11. 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.” ..... 11. The sufficient grounds are like the evidence being not available for no fault of the plaintiff, the suit being pre-matured and the cause of action accruing pending the suit, the plaintiff has failed to put in evidence an important document and where the plaintiff had been mislead by the absence of a specific denial by the defendant.“ From the dictum laid down, the court has to find out whether the plaintiff has made out grounds under Order 23 Rule 1 of CPC and consequently whether the Court below is right in allowing the petition. 4.5. Contending that the plaintiff who has failed to establish her case on merits is not entitled to, as of right, to withdraw the suit and file a fresh suit, the learned counsel for the revision petitioners relied upon the decision reported in 1992 (2) MLJ 563 (A.P.S. Baharudeen and another v. Antony and others). “28. ...... On a reading of the two clauses in Sub-rule (3) of Order 23, Rule 1 of the Code of Civil Procedure, it is clear that the legislature has advisedly used a distinctly different language. While Clause (a) refers to the pending suit which must fail by reason of some formal defect, Clause (b) refers to the suit it is instituted with the leave of the court. If a matter falls under Clause (a), the court is concerned only with the question whether the suit must fail by reason of a formal defect. On the other hand, if Clause (b) is invoked by a party, then the court must address itself to the question whether there are sufficient grounds for allowing the party to institute a fresh suit for the same subject matter or part thereof. Hence, in my view, it is not correct to say that sufficient grounds' should be read ejusdem generis with 'formal defect or that they should be analogous thereto. 'Sufficient grounds' would cover a wider field and not restricted to a 'formal defect' or a similar defect. Hence, in my view, it is not correct to say that sufficient grounds' should be read ejusdem generis with 'formal defect or that they should be analogous thereto. 'Sufficient grounds' would cover a wider field and not restricted to a 'formal defect' or a similar defect. However, when the question arises before an appellate court after the adjudication of the matter on merits by one court or two courts, the test will be whether the court is justified in depriving the defendant of the benefit of a finding rendered in his favour after a full trial. It is well known that when a court grants leave to file a fresh suit on the identical cause of action, the withdrawn suit has no existence in the eye of law. It is not available for any purpose and the parties are relegated to the same position which they occupied before the suit was brought. Hence, the court has to consider in each case when an application is filed in the appellate stage for withdrawing the suit with liberty to file a fresh suit, whether the defendant should be driven back to original position in which he was prior to the filing of the suit, even though he has come out successful after a full trial.” 4.6. Contending that the right of the plaintiff to withdraw the suit is subject to few limitations and restrictions, the learned counsel for the revision petitioners relied upon the decision reported in 2013 (4) MLJ 315 (Athiappan and Others v. Palaniappan and others):- “18. It is to be borne in mind that if the suit is at preliminary stage and issues are not framed and if the pleadings suffer from numerous defects, a Court of Law would allow a Plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action, of course, based on the facts and circumstances of a given case. 19. The words 'sufficient grounds' under Order 23 Rule 1 (3) of Civil Procedure Code would encompass may facets such as genuineness of grounds set forth in the petition, prayer of the suit, the prejudice likely to be caused to the other side and other incidental, relevant and other necessary concomitant factors. 20. 19. The words 'sufficient grounds' under Order 23 Rule 1 (3) of Civil Procedure Code would encompass may facets such as genuineness of grounds set forth in the petition, prayer of the suit, the prejudice likely to be caused to the other side and other incidental, relevant and other necessary concomitant factors. 20. Ordinarily, a Court of Law is to exercise its discretionary power under Order 23 Rule 1 subject to the conditions specified therein by exercising the same with great care and caution and also after taking into all attendant and relevant aspects of the matter including the desirability of allowing a litigant to commence a fresh bout of litigation on the same cause of action, in the considered opinion of this Court. 21. Although, it may be the prerogative of the Plaintiff to withdraw or abandon either the entire suit claim or part claim at any time after filing of the suit, yet, the said liberty/right is not absolute so as to provide lever in permitting him or ratifying an abuse of process of Court. Also, a person who has filed his written statement cannot be deprived of his right to insist upon for payment of costs or even to take a plea that in consequence of such giving up or withdrawal or abandoning, the suit itself would be rendered an otiose one. 22. If a party wants to file a suit on the basis of a cause of action, different from the previous suit, the question of seeking permission of the Court in this regard does not arise on any score, as opined by this Court. The fact that a Plaintiff is entitled to either withdraw the suit or abandon the suit in entirety or part of the claim by itself is no licence for him to claim a right to do so, as against the genuine and legitimate rights of the Defendant's back and with an ulterior object. 23. To put it succinctly, a right of Plaintiff to withdraw or abandon the suit at his will is subject to few limitations/restrictions based on the principle that if third party has acquired a valuable right, there is no room for withdrawal to his prejudice/against his interest.” 4.7. 23. To put it succinctly, a right of Plaintiff to withdraw or abandon the suit at his will is subject to few limitations/restrictions based on the principle that if third party has acquired a valuable right, there is no room for withdrawal to his prejudice/against his interest.” 4.7. Contending that permitting withdrawal of the suit would amount to bypassing the order of this Court justifying the rejection of amendment application and therefore the withdrawal should not have been permitted, the learned counsel for the revision petitioners, relied upon the decision reported in 2012 (5) CTC 786 (A.Subramani v. Rathinammal), where-under it has been held as under:- “12 ..... 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 Lallu v. 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.“ 4.8. This Court is of the view that this case, i.e., A.Subramani's case, is directly applicable to the facts of the case on hand and the permission granted by the Court to withdraw the suit cannot be allowed to be sustained. 5. Learned counsel for the respondent / plaintiff relies upon the following decisions, in order to support the proposition that the plaintiff has made out the grounds for withdrawal of the suit and therefore, the order of the Court below permitting withdrawal is justified. The relevant dictum laid down in the said decisions are extracted further:- (i) AIR 1958 All 456 (Ram Roop & Ors v. Bishwa Nath & ors.) “36. The principles relating to the scope and applicability of Article 227 of the Constitution which emerge from a consideration of the cases discussed above appear to be these : 1. The superintendence referred to in Article 227 of the Constitution includes judicial superintendence. 2. The power conferred by the Article is wide but not unlimited. The exercise of the power is discretionary and relief under the Article cannot be claimed as a matter of right. The principles regulating the exercise of the power are generally speaking the same as the principles on which writs can be issued under Article 226 but in a sense the power under Article 227 is wider as the High Court can sometimes issue directions in the exercise of that power which it could not do under Article 226. 3. The power under the Article can be exercised even in those cases in which no appeal or revision lies in the High Court. 4. The power should not ordinarily be exercised if any other remedy is available to the aggrieved party even though the pursuing of that remedy may involve some inconvenience or delay. 5. The power should not be used to correct mere errors of fact or law. Error of law may include a wrong decision on a question of jurisdiction. 6. 4. The power should not ordinarily be exercised if any other remedy is available to the aggrieved party even though the pursuing of that remedy may involve some inconvenience or delay. 5. The power should not be used to correct mere errors of fact or law. Error of law may include a wrong decision on a question of jurisdiction. 6. The power is to be used sparingly only in appropriate cases in which the conscience of the Court is pricked and it feels that immediate interference is called for as it is necessary to keep the Subordinate Courts or Tribunals within their bound or to prevent some outrageous miscarriage of justice and grave results would follow if the power is not exercised. Whether a particular case is of this kind or not will depend on its own facts and circumstances. Such cases cannot obviously be exhaustively catalogued.” (ii) 2003 (3) SCC 524 (Sadhana Lodh v. National Insurance Co. Ltd.,):- “6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal....” (iii) AIR 1964 SC 497 (Major S.S.Khanna v. Brig F.J.Dhillon):- “The section consists of two parts : the first, prescribes the conditions in which jurisdiction of the High Court arises i.e. there is a case decided by a subordinate Court in which no appeal lies to the High Court ; the second, sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is "exercisable in respect of "any case which has been decided". The expression "case" is not defined in the Code, nor in the General Clauses Act. But the power of the High Court is "exercisable in respect of "any case which has been decided". The expression "case" is not defined in the Code, nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a Civil Court : Balakrishna Udayar v. Vasudeva Aiyar; it includes a proceeding in a Civil Court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable.” (iv) 1989-1-L.W.298 (T.M.Natarajan v. Subbaraya Mudaliar):– “Balakrishna Udayar v. Vasudeva Aiyar L.R. 44 I.A. No. 261 at 267 is a case in which a Court passed an order without jurisdiction, and it was held that it is a "case decided" and Section 115, C.P.C. would apply. It was further held as follows: It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. And if the appellant's contention be correct, then if the Civil Court should absolutely and whimsically decline to exercise it's jurisdiction and refuse to make any orders as to the filling up of vacancies, no matter how many existed there would not, in a case such as the present, be any remedy available under this section and no appeal would lie.” (v) 2002 (2) SCC 2 (Prem Bakshi & Ors v. Dharam Dev & Ors):- “6. Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent No.1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party.” (vi) 1998 (3) CTC 16 (Kokila & anr v. K.S.Bhoopathy & Ors):- “4. .... Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party.” (vi) 1998 (3) CTC 16 (Kokila & anr v. K.S.Bhoopathy & Ors):- “4. .... the words “sufficient grounds” would cover a wider field and not restricted to “formal defect” or “similar defect”. The test in such a situation will be whether the court is justified in depriving the defendant of the benefit of a finding rendered in his favour after a full trial? It is well known that when the court grants leave to file a fresh suit....” Even though these decisions have been placed, except decisions relating to jurisdiction of the Court under Article 227 of the Constitution of India, it is not explained in what way these decisions would be relevant and applicable to the facts of this particular case. 6. The main contention of the learned counsel for the revision petitioners is that the order, dated 26.02.2013, passed by the Court below would amount to nullifying the order passed by this Court in C.R.P.No.2856 of 2010 and therefore, the order passed by the Court below deserves to be set aside. 7. Whether this contention could be accepted is the issue to be considered. 8. The circumstances under which the application for withdrawal has been filed has already been indicated. The circumstances under which the petition for withdrawal can be allowed has been indicated in the decision reported in 2013 (1) CTC 38 (Olympic Cards Limited v. Standard Chartered Bank) (relied upon by the learned counsel for the respondent / plaintiff) where-under it has been held as follows:- “14. The object of Order XXIII, Rule 1 C.P.C. is to give power to the Court to allow the Plaintiff at any time to withdraw his suit unconditionally or to withdraw from the suit on the fulfillment of conditions:- (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. The object of the rule is only to prevent the defeat of justice on technical grounds. Sub-rule (3) contemplates, withdrawal from the suit with liberty to bring a fresh suit. The object of the rule is only to prevent the defeat of justice on technical grounds. Sub-rule (3) contemplates, withdrawal from the suit with liberty to bring a fresh suit. Plaintiff who asks/seeks for leave to withdraw the suit must make out a case within Order XXIII, Rule 1 (3)(a) or (b) C.P.C. Order XXIII, Rule 1 and sub-rule (2) and sub-rule (3) all are to be read together. Application seeking permission of the Court to withdraw the suit and bar under Order XXIII, Rule 1(4) C.P.C. to file a fresh suit pre-supposes the institution of the suit.......“ 9. The Order passed by the Court below do not indicate that the suit must fail because of those defects indicated under Order 23 Rule 1 of CPC. The reasons stated for allowing the plaintiff to withdraw the suit and to institute a fresh suit will not amount to proof of “sufficient grounds” for allowing the plaintiff to institute a fresh suit on the same cause of action. As indicated already, allowing the petition to withdraw the suit after the case was posted for arguments and after the dismissal of the amendment application, would amount to abuse of process of law, more specially when the grounds under Order 23 Rule 1 CPC is not satisfied. Therefore, the order passed by the Court below is liable to be set-aside. 10. Further, it is not as if the application for withdrawal was filed at the earliest point of time. It has been filed after the dismissal of the amendment application, which was challenged up to this Court. The intention in filing the withdrawal petition is to by-pass the order passed by this Court, dismissing the application for amendment. What cannot be achieved directly cannot be permitted to be achieved indirectly. Therefore, the application for withdrawal ought not to have been allowed by the Court. The contentions raised challenging the order passed by the Court below are well placed and the order passed by the Court below is set-aside. 11. In the result, this Civil Revision Petition is allowed. No costs. Consequently, the connected MP is closed.