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2017 DIGILAW 2695 (MAD)

Mohammed Hanifa (Died) v. Sankaranarayanan

2017-08-17

M.V.MURALIDARAN

body2017
ORDER : The respondent in A.S.No.142 of 2007, on the file of the learned Additional Sub-Court, Vridhachalam, is the Civil Revision Petitioner before this Court. Challenging the order passed in I.A.No.16 of 2010 in A.S.No.142 of 2007, on the file of the learned Additional Sub-Court, Vridhachalam, dated 09.02.2010. 2. The respondent/appellant has filed a suit in O.S.No.412 of 2000 against this petitioner/defendant for a declaration declaring that the plaintiff's title over the suit property and for consequential relief of permanent injunction. The suit was hardly contested by the defendants and by way of filing written statement, and the learned Principal District Munsif, Vridhachalam was dismissed the suit on 16.07.2007. 3. Challenging the said judgment and decree in O.S.No.412 of 2000 dated 16.07.2007, the respondent/appellant who is the plaintiff has filed an appeal before the learned Additional Subordinate Judge, Vridhachalam in A.S.No.142 of 2007. While pendency of the above appeal, the respondent/appellant who is the plaintiff has filed an application in I.A.No.16 of 2010 in O.S.No.412 of 2000 filed under Order 23 Rule 1(3)(b) CPC, permitting the appellant/plaintiff to withdraw the original suit and permit the plaintiff to file another suit on the same cause of action. In the petition filed in I.A.No.16 of 2010, the plaintiff stating that the appellant/plaintiff may be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. 4. It is the case of the petitioner is that originally the petition filed against the respondents/defendants for declaration declaring the title of the suit schedule of property in favour of the plaintiff and also for permanent injunction. At the time of filing the suit, the plaintiff is not impleaded as legal heirs of his grandfather and therefore, the defendants while filing the written statement has pointed out that the suit is not maintainable due to non-joinder of necessary parties. 5. After the judgment in O.S.No.412 of 2000, the appellant/plaintiff has impleaded the legal heir of his grandfather namely the respondents 2 to 8 as respondents in the Appeal. But, the respondents 2 to 8, who were impleaded as respondents in the appeal were not appeared in the lower Court in O.S.No.412 of 2000. 6. 5. After the judgment in O.S.No.412 of 2000, the appellant/plaintiff has impleaded the legal heir of his grandfather namely the respondents 2 to 8 as respondents in the Appeal. But, the respondents 2 to 8, who were impleaded as respondents in the appeal were not appeared in the lower Court in O.S.No.412 of 2000. 6. After filing the appeal in A.S.No.142 of 2007, it is alleged by the appellant/plaintiff that his counsel has advised after gone through the plaint, written statement and judgment that in the plaint, there was no proper pleadings in respect of the share of the plaintiff and the other particulars were not properly explained in the plaint and therefore, the learned counsel in the appeal stage advised the plaintiff that the preparation of the plaint in O.S.No.412 of 2000 itself is not proper and therefore, he advised the plaintiff to file an application under Order 23 Rule 1(3)(b) CPC for withdrawal of the suit with liberty to file a fresh suit with the same cause of action. 7. The plaintiff also states in the affidavit that one of the document in respect of purchasing the property by the defendant, the boundary is not properly given, since the plaintiff and his ancestors were enjoying the suit schedule of property for more than 50 years. But, without stating the above possession of 50 years, the plaint was preferred. Therefore, the formal defect mentioned supra could not be corrected in the plaint. Therefore, unless the plaintiff is permitted to withdraw the suit and file a separate suit on the same cause of action, he would put irreparable loss and the plaintiff is not permitted to withdraw the suit in the appeal stage, he stated that he would lose the case also. Therefore, the plaintiff could not be compensated in all. 8. For the above petition in I.A.No.16 of 2010, the respondent/defendant has filed a counter affidavit by stating that the allegations set out in the affidavit is not maintainable. Therefore, the plaintiff could not be compensated in all. 8. For the above petition in I.A.No.16 of 2010, the respondent/defendant has filed a counter affidavit by stating that the allegations set out in the affidavit is not maintainable. The non raising of the ground of 50 years possession and the ancestral property is not an ordinary mistake and when the appeal in A.S.No.142 of 2007 is pending and posted on 08.07.2009 in the special list for arguments at the relevant point of time, the appellant/plaintiff has filed a petition under Order 41 Rule 27 of CPC for accepting the fresh documents filed by the appellant/plaintiff in the appeal stage and the same is pending. At that time, the appellant/plaintiff has filed the present petition in I.A.No.16 of 2010 for permitting the appellant/plaintiff to withdraw the suit with liberty to file a fresh suit. Therefore, the said petition itself is not maintainable in the appeal stage and the respondent/defendant prayed for dismissal of the petition in I.A.No.16 of 2010. 9. Considering the request made by the appellant/plaintiff, on 09.02.2010, the learned Additional Sub-Judge, Vridhachalam was allowed and permitted the appellant/plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action and the said petition was allowed on condition that the appellant/plaintiff should pay a sum of Rs.2,000/- as cost to the respondent/defendant. 10. The learned Judge while considering the petition filed under Order 23 Rule 1(3)(b) of CPC, he quoted two judgments rendered by the Hon’ble Kerala High Court and also by the Hon’ble Supreme Court in a case of Homeo Dr. T.K. Prabhawati v. C.P. Kunhathabi Umma and others reported in AIR 1981 KERALA 170, and in the case of Baniram and others v. Gaind and others reported in AIR 1982 SC 789 . 11. Per contra, the respondent/defendant has produced a judgment in the case of Duraikannu and others v. Malayammal reported in (2003) 3 MLJ 551 . 12. Considering the judgment rendered by the Hon’ble Kerala High Court in the case of Homeo Dr. 11. Per contra, the respondent/defendant has produced a judgment in the case of Duraikannu and others v. Malayammal reported in (2003) 3 MLJ 551 . 12. Considering the judgment rendered by the Hon’ble Kerala High Court in the case of Homeo Dr. T.K. Prabhawati v. C.P. Kunhathabi Umma and others reported in AIR 1981 KERALA 170, and the Hon’ble Supreme Court in the case of Baniram and others v. Gaind and others reported in AIR 1982 SC 789 , the learned Judge stating that if a point is to be made though belated, in the interest of justice, this Court can consider a fresh adjudication by permitting the plaintiff to withdraw the suit and to file a fresh suit. Challenging the said order, the present Civil Revision Petition has been filed. 13. I heard M/s. R. Meenal, learned counsel appearing for the petitioners and M/s. A.L. Gandhimathi, learned counsel appearing for the respondent and perused the records. 14. Admittedly, the plaintiff has filed a suit in O.S.No.412 of 2000 for declaration and for permanent injunction. The written statement was also filed. On full fledged trial, the learned Principal District Munsif, Vridhachalam was dismissed the suit on 16.07.2007. Challenging the said judgment and decree in O.S.No.412 of 2000, this appellant/plaintiff has filed an appeal in A.S.No.142 of 2007. 15. While pendency of the appeal in A.S.No.142 of 2007, the appellant/plaintiff has filed the first application in I.A.No.135 of 2009 under Order 41 Rule 27 of CPC, permitting the appellant/plaintiff filed the additional documents in the appeal stage. 16. While pendency of the above appeal and the application in I.A.No.135 of 2009, the appellant/plaintiff in I.A.No.16 of 2010 filed the 2nd petition under Order 23 Rule 1(3)(b) CPC, seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. 17. The judgment produced by the learned counsel appearing for the appellant/plaintiff both the judgments are filed challenging the rejection of the petition filed under Order 23 Rule 1(3)(b) CPC at the pending of the suit. But, in the case on hand, it is an appeal stage and when the plaintiff has lost his suit after full fledged trial, the Court can be permitted the plaintiff to file application under Order 23 Rule 1(3)(b) CPC, permitting the plaintiff to withdraw the suit with liberty to file a fresh suit with the same cause of action. But, in the case on hand, it is an appeal stage and when the plaintiff has lost his suit after full fledged trial, the Court can be permitted the plaintiff to file application under Order 23 Rule 1(3)(b) CPC, permitting the plaintiff to withdraw the suit with liberty to file a fresh suit with the same cause of action. 18. This Court in the case of Duraikannu and others v. Malayammal reported in (2003) 3 MLJ 551 , very clearly held that a Court of appeal has no doubt power in a proper case to grant permission to withdraw a suit with liberty to file a fresh suit, but such power should be used very cautiously and only when a strong case is made out. 19. For the better appreciation of the case under Order 23 Rule 1(3)(b) CPC is necessary to extract hereunder: “[1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such person is represented by a pleader by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied, - (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, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff,- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) 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.] 20. Admittedly, the plaintiff filed a petition in I.A.No.16 of 2010 under Order 23 Rule 1(3)(b) CPC and in the Civil Procedure Code, it is stated that where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of such suit or such part of the claim. 21. Whether the plaintiff has raised sufficient ground and made out a strong case in the affidavit supporting the petition filed under Order 23 Rule 1(3)(b) CPC. For better appreciation, the appellant/plaintiff's affidavit in I.A.No.16 of 2010 has been extracted hereunder : xxxxxx 22. On fair reading of the above affidavit, it is made clear that the learned counsel appearing for the plaintiff has not raised the ground of share and without raising the said ground has filed the affidavit very bold. 23. Since the plaintiff has not make out any strong case in the affidavit filed under Order 23 Rule 1(3)(b) CPC, the appellant/plaintiff has no right to withdraw the suit and file a fresh suit on the same cause of action. The judgment rendered by this Court in the case of Duraikannu and others v. Malayammal reported in (2003) 3 MLJ 551 , is squarely applicable to the present case. Therefore, this Court warranting interference in the order passed in I.A.No.16 of 2010 in A.S.No.142 of 2007, dated 09.02.2010, and the same is liable to be set aside. 24. The judgment rendered by this Court in the case of Duraikannu and others v. Malayammal reported in (2003) 3 MLJ 551 , is squarely applicable to the present case. Therefore, this Court warranting interference in the order passed in I.A.No.16 of 2010 in A.S.No.142 of 2007, dated 09.02.2010, and the same is liable to be set aside. 24. In the result : (a) this Civil Revision Petition is allowed by setting aside the order passed in I.A.No.16 of 2010 in A.S.No.142 of 2007, dated 09.02.2010, on the file of the learned Additional Sub-Judge, Vridhachalam; (b) the learned Additional Sub-Judge, Vridhachalam, is directed to dispose the appeal in A.S.No.142 of 2007, by giving notice to both the parties and to take up the Appeal on day to day basis, without giving any adjournments to either parties and dispose the same within a period of two months from the date of receipt of a copy of this order. Both the parties are hereby directed to give their fullest co-operation for early disposal of the appeal in A.S.No.142 of 2007. No costs. Consequently, connected miscellaneous petition is closed.