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2017 DIGILAW 2008 (MAD)

Seethalakshmi v. A. T. Harihara Bala Subramanian

2017-07-13

T.RAVINDRAN

body2017
ORDER : 1. Challenge in this civil revision petition is made to the order, dated 02.11.2015, made in I.A.No.80 of 2015 in A.S.No.99 of 2014, on the file of the Principal Subordinate Court, Tirunelveli. 2. The above mentioned civil revision petition has been preferred by the first respondent/first defendant in A.S.No.99 of 2014. 3. The suit in O.S.No.196 of 2013 has been laid by the plaintiff seeking for the relief of declaration that he is the male legal heir of the deceased Thoosi Pandian and the first defendant-Seethalakshmi. On a perusal of the plaint, it is found that the plaintiff has sought for the above said relief on the footing that he has been taken in adoption by the deceased Thoosi Pandian and the first defendant and accordingly, it is his case that he is the only male legal heir of the above mentioned persons and while so, inasmuch as the first defendant on the ill-advise of others, disputed the above status of the plaintiff, according to the plaintiff, he has been necessitated to lay the suit for the appropriate relief. 4. It is found that the above suit of the plaintiff has been resisted tooth and nail by the first defendant-Seethalakshmi by filing a written statement inter alia pleading that the plaintiff is not the adopted son of the deceased Thoosi Pandian and herself and at no point of time, the plaintiff had ever been treated as their adopted son and in such view of the matter, according to the first defendant, the plaintiff is not entitled to seek the relief of declaration as prayed for by him. 5. Based on the above mentioned pleadings, it is found that the parties proceeded with the trial and ultimately on the basis of the oral and documentary evidence adduced by the respective parties, it is found that the Trial Court was pleased to dismiss the suit preferred by the plaintiff. 6. The Trial Court had framed the following issues for determination in the suit: (i) Whether the plaintiff is the adopted son of Thoosi Pandian and the first defendant? (ii) Whether the plaintiff is entitled to obtain the relief of declaration as prayed for? and (iii) To what relief, the plaintiff is entitled to? 7. 6. The Trial Court had framed the following issues for determination in the suit: (i) Whether the plaintiff is the adopted son of Thoosi Pandian and the first defendant? (ii) Whether the plaintiff is entitled to obtain the relief of declaration as prayed for? and (iii) To what relief, the plaintiff is entitled to? 7. On the above said issues, it is found that the Trial Court has held that the plaintiff has failed to establish that he is the adopted son of the deceased Thoosi Pandian and the first defendant and consequently, negatived the relief of declaration sought for by the plaintiff. 8. Impugning the Judgment and Decree passed in the original suit, it is found that the plaintiff has preferred A.S.No.99 of 2014. The first defendant-Seethalakshmi is found to be contesting the appeal suit also laid by the plaintiff. 9. While the appeal is pending, it is found that the plaintiff has taken out an application, in I.A.No.80 of 2015, under Order XXIII Rule 1 of the Code of Civil Procedure, seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. For the above said relief claimed in the above said application, according to the plaintiff, his lis had been dismissed by the Trial Court on the footing that he has not sought for declaration that he is the adopted son of the first defendant and also on the ground that he has not impleaded the State of Tamil Nadu as a party to the suit proceedings and therefore, according to the plaintiff, inasmuch as on account of the said formal defects in the suit preferred by him, the suit having come to be dismissed, it is the case of the plaintiff that he is entitled to withdraw the suit under Order XXIII Rule 1 of the Code of Civil Procedure with permission to prefer another suit with correct pleadings and prayer on the basis of the same cause of action. 10. 10. The above said application laid by the plaintiff was hotly contested by the first defendant by contending that the defects projected by the plaintiff are not formal defects as stated by the plaintiff and the Trial Court has considered the merits of the claim of the plaintiff in all aspects and accordingly, held that inasmuch as the plaintiff has failed to establish that he has been taken in adoption by the deceased Thoosi Pandian and the first defendant and at no point of time, he had ever been treated as their adopted son, the Trial Court consequently dismissed the suit and as a result of which, it is the contention of the first defendant that the plaintiff is not entitled to seek the withdrawal of the suit with liberty to file a fresh suit on the same cause of action and further, according to the first defendant, the rights of the parties having been already crystallized by the Judgment and Decree in the original suit, at the appellate stage, the plaintiff is not entitled to seek for the withdrawal of the suit with liberty to file a fresh suit on the same cause of action and hence, the application is liable to be dismissed. 11. The Appellate Court, on a consideration of the rival contentions putforth by the respective parties, was pleased to allow the application laid by the plaintiff under Order XXIII Rule 1 of the Code of Civil Procedure. Impugning the same, the present civil revision petition has been preferred. 12. As adverted above, only on the footing that he has been taken in adoption by the deceased Thoosi Pandian and the first defendant, the plaintiff has sought for the relief of declaration that he is their male legal heir. In such circumstances, as rightly put-forth by the defendants’ counsel, there is no need for the plaintiff as such to specifically seek for the relief of declaration that he is the adopted son of Thoosi Pandian and the first defendant. When the basis of the plaintiff’s claim is only on the plea of adoption and in such circumstances, the contention of the plaintiff that the Trial Court had dismissed the suit merely on the footing that he has not specifically sought for the relief of declaration that he is the adopted son as such cannot be accepted straightaway. When the basis of the plaintiff’s claim is only on the plea of adoption and in such circumstances, the contention of the plaintiff that the Trial Court had dismissed the suit merely on the footing that he has not specifically sought for the relief of declaration that he is the adopted son as such cannot be accepted straightaway. On the other hand, on a perusal of the Judgment and Decree of the Trial Court, it is found that the Trial Court on framing proper issues had held that the plaintiff had failed to establish the plea of adoption projected by him and accordingly, held that he is not the adopted son of the deceased Thoosi Pandian and the first defendant and consequently, rejected the relief sought for by him. In the above said circumstances, the above ground projected by the plaintiff as a formal defect for enabling him to withdraw the suit with liberty to file a fresh suit on the same cause of action cannot be acceded to. 13. The second formal defect projected by the plaintiff for obtaining the relief under Order XXIII Rule 1 C.P.C., is that his lis has come to be rejected on the ground that he has not impleaded the State of Tamil Nadu as a party to the suit proceedings. As seen from the plaint, it is found that the plaintiff has impleaded the Tahsildar, Palayamkottai, as the second defendant. When according to the plaintiff he is the adopted son of the deceased Thoosi Pandian and first defendant, it is found that the necessary and proper party for the above said lis would only be the first defendant as such, however, for the reasons best known to him, he has also impleaded the Tahsildar, Palayamkottai as the second defendant. However, it is argued by the plaintiff’s counsel that the suit came to be dismissed on the footing that the plaintiff has not impleaded the State of Tamil Nadu as a party to the suit proceedings. However, on a perusal of the Judgment and Decree of the Court below, it is found that merely on that score alone, the plaintiff’s lis has not been rejected as such. However, on a perusal of the Judgment and Decree of the Court below, it is found that merely on that score alone, the plaintiff’s lis has not been rejected as such. On the other hand, the Trial Court, on a consideration of the materials placed before it, held that the plaintiff has failed to establish the plea of adoption projected by him and also failed to establish that he had been ever treated as the adopted son of the deceased Thoosi Pandian and first defendant as claimed by him. Therefore, the mere fact that the suit came to be dismissed also on the footing that the plaintiff has failed to implead the State of Tamil Nadu as a party to the proceedings could not be construed as a formal defect as contemplated under Order XXIII Rule 1 C.P.C. Hence, on that ground the plaintiff cannot maintain that he is entitled to withdraw the suit with liberty to file a fresh suit on the same cause of action. Therefore, the second formal defect also projected by the plaintiff for seeking the relief as such does not merit acceptance. 14. The first defendant’s counsel, in support of his contentions, placed reliance on the decision reported in 2016 SAR (Civil) 358 [Avenue Suppermarts Pvt. Ltd. vs. Mrs.Nischint Bhalla & others] and the Judgment of this Court rendered in C.R.P.(NPD) No.1621 of 2005, dated 13.09.2006. As seen from the above said authorities, it is found that once the rights of the parties had been crystallized, the parties cannot be divested of the rights so vested under the Judgment and Decree of the Court below simply because of withdrawal of the suit at the appellate stage and it is also found that it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy the decree passed in the original suit. Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree. It is also found that the application to withdraw the suit at the appellate stage with liberty to file a fresh suit on the same cause of action cannot be allowed as a matter of course but has to be allowed only when a strong case is made out. It is also found that the application to withdraw the suit at the appellate stage with liberty to file a fresh suit on the same cause of action cannot be allowed as a matter of course but has to be allowed only when a strong case is made out. Considering the principles enunciated in the above said authorities and applying the same to the facts and circumstances of the case in hand, it is found that in the light of the above discussions, the plaintiff has not established that there are formal defects in the plaint to enable him to withdraw the suit with liberty to file a fresh suit on the same cause of action at the appellate stage and therefore, it is found that this is not a rare case, where the plaintiff has established that he is entitled to obtain the relief prayed for and for the discussions above made, it is held that the application laid by the plaintiff seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action does not fall under the parameters enshrined under Order XXIII Rule 1 C.P.C., and it is, therefore found that the Appellate Court on a misconception of the facts and law involved in the above said matter has wrongly entertained the application filed by the plaintiff. In such circumstances, as rightly put-forth by the learned counsel for the first defendant, the impugned order is found to be unsustainable in the eyes of law and liable to be dismissed. 15. In view of the above discussions, the fair and de-creetal order, dated 02.11.2015 passed in I.A.No.80 of 2015 in A.S.No.99 of 2014, passed by the Principal Subordinate Judge, Tirunelveli, are set aside and consequently, the civil revision petition is allowed with costs. It is needless to state that in the light of the order passed by this Court in this civil revision petition, the appeal proceedings in A.S.No.99 of 2014 have to be taken up further and disposed of in accordance with law. Consequently, connected miscellaneous petition is closed.