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2014 DIGILAW 4368 (MAD)

Christudas v. Carolin Baby

2014-11-21

M.DURAISWAMY

body2014
Judgment : 1. Challenging the fair and final order passed in I.A.No.60 of 2009 in O.S.No.36 of 2006, on the file of the Subordinate Court, Kuzhithurai, the defendant has filed the above Civil Revision Petition. 2. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents. 3. The plaintiffs filed the suit in O.S.No.36 of 2006 for partition in respect of 'A' schedule property in respect of the first plaintiff and injunction in respect of the 'C' schedule property in respect of the plaintiffs 2 and 3. According to the plaintiffs, the suit properties originally belonged to the father of the first plaintiff and the defendant viz. Joseph Nadar. On 06.11.1991 the said Joseph Nadar gifted the 'C' schedule property along with the other properties in favour of the plaintiffs 2 and 3. The plaintiffs 2 and 3 are the daughters of the first plaintiff. The plaintiffs 2 and 3 are having absolute title and possession over the 'C' schedule property. The said Joseph Nadar died intestate. Thus the first plaintiff and the defendant are entitled to 1/2 share in the 'A' schedule property. 4. The defendant filed his written statement disputing the description of the properties and the extent mentioned therein. The defendant also disputed the alleged will executed by Joseph Nadar. Apart from these defences, the defendant also took other defences available to him. Subsequently the fourth plaintiff got himself impleaded in the suit on 05.03.2008 in the application in I.A.No.152 of 2007. The fourth plaintiff was impleaded in the suit since the plaintiffs 1 to 3 sold the properties in his favour. By virtue of the sale made by the plaintiffs 1 to 3, they had no interest over the property. Thereafter, the fourth plaintiff filed an application in I.A.No.60 of 2009 in O.S.No.36 of 2006 under Order 23 Rule 1 of the Code of Civil Procedure to permit him to withdraw the suit with liberty to file a fresh suit, after rectifying the defects in the plaint. 5. In the affidavit filed in support of the application, the fourth plaintiff has stated that in the gift deed executed by Joseph Nadar on 21.12.1995 in respect of 'B' and 'C' schedule properties in favour of the first plaintiff, the Re.Sy.numbers were mentioned wrongly. 5. In the affidavit filed in support of the application, the fourth plaintiff has stated that in the gift deed executed by Joseph Nadar on 21.12.1995 in respect of 'B' and 'C' schedule properties in favour of the first plaintiff, the Re.Sy.numbers were mentioned wrongly. Further he has stated that he purchased the suit properties after stating the correct Re.Sy.numbers in his sale deed dated 05.03.2007. That apart according to the fourth plaintiff, the plaintiffs 1 to 3 omitted to mention the gift deed dated 21.12.1995 in the plaint. Since there were some mistakes and omissions committed by the plaintiffs 1 to 3 in the plaint, the fourth plaintiff filed an application in I.A.No.103 of 2008 under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint. 6. However the said application was dismissed by the trial Court on 22.10.2008 with an observation that the fourth plaintiff can file a fresh suit if he is permitted to do so under law. Thereafter the plaintiff filed the present application under Order 23 Rule 1 of the Code of Civil Procedure. 7. The defendant filed his counter affidavit stating that the documents referred to by the fourth plaintiff are fraudulent documents. Further he has stated that the gift deed dated 21.12.1995 was not mentioned in the original plaint. Since the plaintiffs 1 to 3 themselves had ignored the said document, the fourth plaintiff who is the pendente lite purchaser has no right to plead the same. According to the defendant, no liberty was given to the fourth plaintiff to file a fresh suit on the same cause of action. Further according to the defendant, under Order 23 Rule 1(5) of the Code of Civil Procedure, the consent of the co-plaintiffs is essential to withdraw the suit. 8. Ms. J.Anandhavalli, learned Counsel appearing for the petitioner in support of her contention relied upon the following judgments: (i) In K.N. Radhakrishnan Vs. P.M.M. Rajammal and 6 others reported in 1998-3-L.W., 736, wherein this Court held that the observation made in the earlier Second Appeal that "the proper remedy would be to file a suit for declaration" cannot construed as permitting the plaintiff to file a suit and that the principle of res judicata will not apply. P.M.M. Rajammal and 6 others reported in 1998-3-L.W., 736, wherein this Court held that the observation made in the earlier Second Appeal that "the proper remedy would be to file a suit for declaration" cannot construed as permitting the plaintiff to file a suit and that the principle of res judicata will not apply. Further this Court held that the said observation is only one of the reasons for dismissing the Second Appeal and it is not a liberty to file a fresh suit under Order 23 Rule 1 has no application and the liberty contemplated there in was not given. (ii) In Radha Gopalakrishnan and another Vs. M.Rajendran and Others reported in 2006(1) CTC 457 wherein this Court held that when there is formal defect in the plaint, the plaintiff would be granted leave to file fresh suit on same cause of action after permitting to withdraw the defective plaint and if the plaintiffs failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to file a fresh suit in respect of the same subject matter. 9. Countering the submissions made by the learned Counsel for the petitioner, Mr. G.R. Swaminathan learned Counsel appearing for the respondents submitted that the trial Court had rightly allowed the application and permitted the fourth plaintiff to withdraw the suit with liberty to file fresh suit on the same cause of action. In support of his contention, the learned Counsel relied upon the judgment in K.S.Bhoopathy and Others Vs. Kokila and Others reported in (2000)5 Supreme Court Cases 458, wherein the Honourable Apex Court held that the legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) of Order 23 of the Code of Civil Procedure in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. 10. 10. A perusal of Order 23 Rule 1(5) of the Code of Civil Procedure it would clear that nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a 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. 11. Therefore, Order 23 Rule 1(5) of the Code of Civil Procedure is clear that the consent of the other plaintiffs is necessary for filing an application under Order 23 Rule 1 of the Code of Civil Procedure. In the case on hand no such consent was obtained from the plaintiffs 1 to 3 for filing an application under Order 23 Rule 1 of the Code of Civil Procedure. Though the fourth plaintiff contended that the plaintiffs 1 to 3 have sold their respective shares in the suit properties to him, that alone is not sufficient to file an application under 23 Rule 1 of the Code of Civil Procedure. When the plaintiffs 1 to 3 still remain as plaintiffs in the suit, the fourth plaintiff should have obtained consent from them for filing an application under 23 Rule 1 of the Code of Civil Procedure, when sub-rule(5) is very clear that the consent of the co-plaintiffs is necessary to withdraw the suit. In the case on hand, though the consent was not obtained from them, the trial Court had allowed the application. The reasoning given by the trial Court that the plaintiffs 1 to 3 had sold the properties and therefore, their consent is not required is not correct decision in view of the provisions under 23 Rule 1(5) of the Code of Civil Procedure. 12. When the plaintiffs 1 to 3 themselves have not mentioned about the gift deed dated 21.12.1995 in the plaint, the pendente lite purchaser viz., the fourth plaintiff cannot now take a stand that by mistake it was not mentioned and therefore, he should be allowed to include the details of the said document in the plaint. On this ground, the fourth plaintiff filed an application to amend the plaint in I.A.No.103 of 2008 which was rightly dismissed by the trial Court. Against the dismissal of the application in I.A.No.103 of 2008, the fourth plaintiff has not filed any revision petition. Therefore the order has become final. On this ground, the fourth plaintiff filed an application to amend the plaint in I.A.No.103 of 2008 which was rightly dismissed by the trial Court. Against the dismissal of the application in I.A.No.103 of 2008, the fourth plaintiff has not filed any revision petition. Therefore the order has become final. As laid down in the judgment in Radha Gopalakrishnan and another Vs. M.Rajendran and Others reported in 2006(1) CTC 457 , the fourth plaintiff cannot be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action, when there is no formal defect in the plaint. 13. In the case on hand, the fourth plaintiff has not averred any formal defect warranting withdrawal of the suit with liberty to file fresh suit. Even the alleged omissions in the pleadings were not because of the fourth plaintiff, but due to the plaintiffs 1 to 3. When the plaintiffs 1 to 3 have not filed any application either to rectify the defect or to file an application under Order 23 Rule 1 of the Code of Civil Procedure, the fourth plaintiff who is a pendente lite purchaser cannot seek such relief before the trial Court. 14. The reasoning of the trial Court in allowing the application that since the trial had not commenced, the fourth plaintiff can be permitted to withdraw the suit and liberty can be given to him to file fresh suit cannot stand. The fourth plaintiff can be permitted to withdraw the suit and liberty may be given to him to file fresh suit only if the provisions of Order 23 of the Code of Civil Procedure are followed. 15. In these circumstances the judgment relied upon by the learned Counsel for the respondents is not applicable to the fact and circumstances of the present case. The fourth plaintiff being the pendente lite purchaser from the plaintiffs 1 to 3 cannot be permitted to file fresh suit on the same cause of action. If at all either he can continue with the present suit or he can file fresh suit, however not on the same cause of action mentioned in O.S.No.36 of 2006. In these circumstances, the trial Court should not have allowed the application. Therefore, the fair and final order passed in I.A.No.60 of 2009 in O.S.No.36 of 2006 is liable to be set aside. Accordingly, the same is set aside. In these circumstances, the trial Court should not have allowed the application. Therefore, the fair and final order passed in I.A.No.60 of 2009 in O.S.No.36 of 2006 is liable to be set aside. Accordingly, the same is set aside. 16. Accordingly, the Civil Revision Petition is allowed. Consequently, the connected Miscellaneous Petition is closed. There shall be no order as to costs.