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2015 DIGILAW 1344 (MAD)

Annasamy Pandian (Died) v. V. Rajendran

2015-03-09

PUSHPA SATHYANARAYANA

body2015
Judgment 1. This Civil Revision Petition is filed by the second defendant, aggrieved by the order permitting the plaintiffs to withdraw the suit and file a fresh suit on the same cause of action. 2. The plaintiffs had laid the suit for a bare injunction, restraining the defendants from interfering with the peaceful possession. The suit is filed in the year 2004. Now, the trial is over and the suit is posted for arguments. 3. The plaintiffs in I.A.No.424 of 2014 had contended that in the suit, the description of the property with regard to the survey number is given as 192/09. But the defendants, while transferring the patta in their names had changed it as 192/14. The plaintiffs were not aware of the said change of survey number at the time of filing of the suit. During the pendency of the suit, the second defendant had mentioned the survey number as 192/14 in a settlement deed dated 21/9/2012 written in favour of his son. The said change of survey number came to the knowledge of the plaintiffs only during the pendency of the suit. Therefore, without changing the survey number, if the suit is proceeded with even in the event of success, the plaintiffs will not be able to enjoy the fruits of the decree. 4. According to the plaintiffs/respondents, the defendants had clandestinely registered the sale deeds in Kerala. Therefore, they did not have the knowledge at the time of filing of the suit. Besides, the plaintiffs had not sought for declaration of title which may be a technical defect at a later point of time. Therefore, the plaintiffs had sought for withdrawal of the suit and file a fresh suit on the same cause of action. 5. The same was resisted by the defendants/petitioners that it was an abuse of process of Law to withdraw the suit after the trial is over and arguments were heard and reserved for judgment. The suit is filed in the year 2004. In the patta proceedings alleged in the affidavit, the plaintiffs were a party and he had taken active part of the same. Therefore, the allegation that the plaintiffs had knowledge about the same only during the pendency of the suit is unacceptable. 6. The defendants also contended that it is not a formal defect for the plaintiffs to withdraw the suit and file a fresh suit. Therefore, the allegation that the plaintiffs had knowledge about the same only during the pendency of the suit is unacceptable. 6. The defendants also contended that it is not a formal defect for the plaintiffs to withdraw the suit and file a fresh suit. The plaintiffs had filed C.R.P.Nos.2142 and 2143 of 2014 in which common orders were passed on 27/10/2014. In the said Civil Revision Petitions, this Court had directed the trial Court to dispose of the suit on merits within a period of six weeks from the date of receipt of the copy of the order. The said revisions were challenging the dismissal of the petitions to reopen the case and recall P.W.1. Hence the defendants had prayed for the dismissal of the application. 7. The learned District Munsif, Muthukulathur, who heard the applications, allowed the same permitting the plaintiffs to withdraw the suit and file a fresh suit on the same cause of action on payment of Rs.3,000/- as costs payable to the defendants. Aggrieved by the same, the present revision has been filed by the defendants as petitioners. 8. Now, it is stated that pursuant to the order of the learned District Munsif, Muthukulathur, the second suit has also been filed by the plaintiffs which has been numbered as O.S.No.11 of 2015 on the file of the District Munsif, Muthukulathur. 9. Heard the learned counsel appearing for the petitioner and the respondents. 10. The only question that has to be decided is whether the order passed by the learned District Munsif, Muthukulathur is sustainable. 11. The objection of the defendants is that the application is filed after ten years having driven the defendants from pillar to post by filing several interlocutory applications and Civil Revision Petitions. The reason given by the plaintiffs for withdrawing the suit is also not convincing and acceptable as the same had been filed after almost a decade, after filing of the suit. If the survey number specified in the suit schedule is a mistake, it was always open to the plaintiffs to have amended the same by filing an application under Order 6 Rule 17 of the Code of Civil Procedure. Even if an amendment application is to be filed, it has to be a pre-trial amendment. If the survey number specified in the suit schedule is a mistake, it was always open to the plaintiffs to have amended the same by filing an application under Order 6 Rule 17 of the Code of Civil Procedure. Even if an amendment application is to be filed, it has to be a pre-trial amendment. But in this case, the plaintiffs allowed the trial to go on, the arguments to be completed and when the judgment is about to be pronounced has come up with this application for withdrawal of the suit which is impermissible in law. 12. The learned counsel for the revision petitioners placed his reliance on C.BAGYALAKSHMI Vs. P.IRULAPPAN & ANOTHER reported in {2006 (5) CTC - 574}, wherein this Court, after considering several judgments had given a finding in paragraph 13 as follows:- “I have considered the arguments of the counsel for both the petitioner and the respondents. The reason that has been adduced for withdrawal of the suit by the petitioner, as it could be seen from the affidavit, is totally unacceptable and it is not well founded. If really, the survey number and the boundaries are not properly given in the plaint, the petitioner could very well approach the Court seeking amendment. Without doing so, the Application filed for withdrawal of suit cannot be permitted. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. Further, it will result in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of cases.” 13. The learned counsel appearing for the petitioners also cited the decision K.CHINNA VAIRA THEVAR Vs. S.VAIRA THEVAR {AIR 1983 Madras - 160}, wherein in paragraph 13, it is held as follows:- “After a due consideration of the matter, we are of the view, that the failure or inability of the plaintiff to secure necessary evidence to support his case will not be a ground as contemplated in the said Rule. The expression 'sufficient grounds' occurring in the aforesaid Rule will not take in dismissal of a suit on the ground that the plaintiff has not established his case. The expression 'sufficient grounds' occurring in the aforesaid Rule will not take in dismissal of a suit on the ground that the plaintiff has not established his case. If it is otherwise, in all cases where a suit or appeal is dismissed on merits, the plaintiff or appellant, as the case may be, may come forward with an application under the said Rule to have the suit withdrawn, with liberty to file a fresh suit later on, on the same cause of action. If such a thing is permitted, there will be no end to any litigation. Therefore, the legislature would not have contemplated 'dismissal of a suit on merits' as being a sufficient ground for permitting the plaintiff to withdraw the suit with liberty to file a fresh suit. The failure of the plaintiff to prove his case is no ground for allowing him to withdraw the suit under R.1 (3) (a) of O.23. The object of the Rule is not to enable the plaintiff after he has failed to establish his case by adducing requisite evidence to have a further opportunity to file a fresh suit to reagitate the matter so as to prejudice the other side.” 14. He also placed reliance on GOPIREDDY PRABHAKAR REDDY Vs. GOPIREDDY SURYANARAYANA REDDY reported in {2013 (1) ALT - 56}. 15. Reliance was placed on BALASUNDARA ACHARI Vs. SHANMUGAM & ANOTHER reported in {2014 (4) L.W - 713} by the counsel for the respondent/plaintiff. In the said case, the withdrawal petition was filed immediately after the commencement of the trial and an amendment application was also filed. Therefore, the respondents cannot equate the facts with his case. The respondents also cited KOKILA AND ANOTHER Vs. K.S.BHOOPATHY AND FIVE OTHERS reported in {1998 (3) CTC - 16} in support of his contention which also has no application to the present case. 16. From the above decisions, it is clear that the defect mentioned by the plaintiffs is not a 'formal defect'. A 'formal defect' is one which goes to the root of the claim. If the plaintiffs had omitted to obtain the permission of the Court to file the suit or if there is a mis-joinder of parties or failure to disclose the cause of action or when such failure is erroneous, or when the Court has got no jurisdiction, they may be prescribed as 'formal defect'. 17. If the plaintiffs had omitted to obtain the permission of the Court to file the suit or if there is a mis-joinder of parties or failure to disclose the cause of action or when such failure is erroneous, or when the Court has got no jurisdiction, they may be prescribed as 'formal defect'. 17. The second requirement is that any 'formal defect' must not be due to the fault of the plaintiffs. The failure of the plaintiffs to establish his case cannot be the ground to allow him to withdraw the suit with liberty to file another suit on the same cause of action. The withdrawal of the suit contemplated under Order 23 of the Code of Civil Procedure cannot be allowed to be misused by the parties. 18. As rightly contended by the learned counsel for the petitioner, the plaintiffs had not even cared to file an amendment application which provision is available to the plaintiffs under the Code of Civil Procedure. When he has not exercised the right available to him under the Code, the Courts cannot give liberty to withdraw the suit. By allowing the withdrawal of the suit, the hardship that the defendants would be put to cannot be compensated. This is the reason why the legislature thought it fit to seek the permission of the Court under sub-Rule 3 to withdraw the suit and reserve the liberty for another round of litigation on the same cause of action. It is not a mere withdrawal of a suit. But the plaintiffs had filed the application to cover up all the omissions and failures in the second suit on the same cause of action. No doubt, the defendant has got the liberty to contest the second suit, but for no fault of his, the defendant cannot be penalised. Thus, for withdrawal of the suit, the plaintiffs have to either establish a good ground under clause (a) or (b) of Order 23 Rule 3 of the Code of Civil Procedure. The plaintiffs having failed to establish either a 'formal defect' or sufficient grounds for withdrawal of the suit cannot be permitted to do so. The trial Court without looking into all these aspects had erroneously allowed the application which is unsustainable. 19. The plaintiffs having failed to establish either a 'formal defect' or sufficient grounds for withdrawal of the suit cannot be permitted to do so. The trial Court without looking into all these aspects had erroneously allowed the application which is unsustainable. 19. In the result, this Civil Revision Petition is allowed and the order passed in I.A.No.424 of 2014 in O.S.No.89 of 2004 dated 8/12/2014 on the file of the District Munsif Court, Muthukulathur is set aside. No costs. Consequently, the connected Miscellaneous Petition is closed.