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2015 DIGILAW 2733 (MAD)

Kalyanasundaram v. Murugan

2015-08-06

P.DEVADASS

body2015
ORDER : 1. As this matter lies in a narrow compass and it could be disposed of based on question of law, I have decided to dispose of this civil revision petition today. Plaintiffs/appellants aggrieved by the dismissal of their I.A. No. 339 of 2014 in A.S. No. 11 of 2014, filed under Order XXIII Rule 1 of the Code of Civil Procedure, to withdraw the suit in O.S. No. 132 of 2009 with liberty to file a fresh suit with certain liberty, have directed this civil revision. 2. It is a partition suit between the children of one Kailasam. The Kailasam created problem by selling a portion of the property to the respondent/1st defendant. The children of Kailasam have laid up the suit in O.S. No. 132 of 2009 in the Court of Principal Subordinate Judge, Tenkasi, as against the respondent/1st defendant, who had purchased the portion of the property. 3. The plaintiffs have lost their suit in the Trial Court. They have appealed in A.S. No. 11 of 2014 to the Principal District Court, Tirunelveli. 4. While the said appeal suit was pending, the petitioners/plaintiffs/appellants were advised to include some of left out properties and to implead necessary parties, otherwise, the suit may fail on account of partial partition. Therefore, they have filed an application to withdraw the suit with liberty to file a fresh suit based on the same cause of action. 5. The respondent/1st defendant took up the stand that the plaintiffs are cunning, they wish to avoid payment of Court fee. They have overlooked Section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. 6. The learned First Appellate Judge agreed with the objections of the respondent/1st defendant and dismissed the petition. 7. Order XXIII of the Code of Civil Procedure deals with withdrawal and adjustment of suits. Clause (a) to Rule 3 of Order XXIII Rule 3 envisages that a suit must fail by reason of some formal defect. Clause (b) envisages that there are sufficient grounds for allowing the plaintiff to institute a fresh suit on the subject matter of the suit or part of a claim. 8. Thus, it is seen that discretion is given to the Court. But, it should be exercised in a judicial manner. Permission may be accorded without any condition or with condition. Normally, permission to withdraw will be granted. 8. Thus, it is seen that discretion is given to the Court. But, it should be exercised in a judicial manner. Permission may be accorded without any condition or with condition. Normally, permission to withdraw will be granted. But, the problem arises when the Court permits the plaintiff to withdraw the suit by imposing certain conditions. 9. Now, in the present case, the Appellate Court was very much concentrated with payment of Court fee. It was under the impression that the plaintiffs will cheat the exchequer. That may not be a relevant factor. There are ways and means to collect the Court fee. Therefore, anticipating the fiscal matter, the Court cannot refuse liberty when especially if the suit is allowed to continue, it will end in a fiasco, because of formal defects, since all the properties and parties were not included in this case. 10. In the result, the order and decretal order, dated 12.02.2015, in I.A. No. 339 of 2014 in A.S. No. 11 of 2014 in O.S. No. 132 of 2009, on the file of learned Principal District Judge, Tirunelveli, are set aside. Liberty is granted to the petitioners/plaintiffs/appellants to withdraw the suit and institute a fresh suit by including all the relevant properties and also the necessary parties. They are bound to pay the Court fee as per proviso of Tamil Nadu Court Fees and Suit Valuation Act, 1955 before registration of the plaint. Accordingly this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.