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2018 DIGILAW 1357 (MAD)

C. Karuppanan (Died) v. C. Sanga Pillai

2018-04-06

R.THARANI

body2018
JUDGMENT : 1. Heard Mr. P. Thiagarajan, learned counsel appearing for the petitioners and Ms. J. Maria Roseline, learned counsel appearing for the first respondent. 2. The petitioners filed the above Civil Revision Petition, challenging the order dated 31.01.2008 in I.A.No.78 of 2007 in A.S.No.19 of 2007 on the file of the Subordinate Judge, Kuzhithalai. 3. The first respondent herein is the plaintiff has filed a suit in O.S.No.224 of 1999, on the file of the District Munsif, Kuzhithalai, for mandatory injunction. The learned District Munsif, Kuzhithalai has dismissed the suit on the ground of limitation. Without considering the limitation, the learned Sub Judge, Kuzhithalai has permitted withdrawal of the suit with liberty to file a fresh suit on the same cause of action. 4. The petitioners' case is that one Kaniyammal and her brother Rasu gounder and they purchased the property from one Veeramalaipillai and Sangapillai on 19.02.1949. Afterwards the said Kanniyammal and Rasu goundar entered into oral partition and suit properties belongs to Rasu goundar and one well in Survey No.196/2C=0.06.0 hec is kept common for Kanniyammal and Rasu goundar. The plaintiff and third and fifth respondent are sons of Rasu goundar. The first respondent herein claimed partition of the suit properties and the suit was dismissed as the plaintiff did not implead his other brothers, four sisters and wife of the fourth defendant. It is decided that the plaintiff is not in possession of the property and the suit is not within the limitation period. It is stated that the plaintiff did not claim any joint possession in the plaint itself. 5. The learned counsel for the petitioner submitted that the lower Appellate Court has failed to consider the facts in issue and permitted the respondents to withdraw the suit with liberty to file a fresh suit in the same cause of action. It is further argued that the original suit filed in the year 1999 on 27.04.2007 was dismissed. When the appeal is posted for the respondents' side argument and at a belated stage only, the respondents have filed the petition for permission to withdraw the suit. 6. It is further argued that the original suit filed in the year 1999 on 27.04.2007 was dismissed. When the appeal is posted for the respondents' side argument and at a belated stage only, the respondents have filed the petition for permission to withdraw the suit. 6. The learned counsel for the petitioners submitted that merely because the plaintiff has failed to implead some necessary parties, the plaintiff is not entitled to withdraw the suit with liberty to file a fresh suit and placed reliance on the decision of this Court rendered in the case Seethalakshmi v. A.T.Harihara Bala Subramanian reported in 2017(0) Supreme (Mad) 2644 reads as follows: “withdrawal of the suit at the lower 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.” 7. The learned counsel for the petitioners relied upon the judgment made in the Hon'ble Supreme Court in the case of K.S.Bhoopathy and others v. Kokila and others reported in 2000(5) SCC 458 , reads as follows: “This becomes all the more important in a case where the application under Order 23 Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff avoiding the decree or decrees against him and seeking a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dipute by the Court or Courts below. 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.” 8. The learned counsel for the respondents submitted that the respondents filed the suit only for injunction not to change to patta and not to interfere with peaceful enjoyment of the property and the case of the respondents was dismissed as the declaration is not sought for and as other legal heirs of Kanniyammal were not impleaded. He would further submit that the respondents herein, who were plaintiff in the main suit claimed injunction based on the possession of the plaintiff and the case and the cause of action may not change. 9. He would further submit that the respondents herein, who were plaintiff in the main suit claimed injunction based on the possession of the plaintiff and the case and the cause of action may not change. 9. The respondents herein failed to implead the other legal heirs of Kanniyammal and wife of the fourth respondent. Except the contention that the petition was belatedly filed at the stage of respondents side argument, no other serious objection is made by the petitioners herein. It is true that the lower Appellate Court has failed to give reasons for the decisions. By not impleading the other legal heirs of the Kanniyammal and the wife of Rasu gounder, their interest in the suit property may be affected. 10. In such circumstances, a chance for the respondents to put forth their case is to be given in the interest of justice. More over the third party interest in the property should also be taken into account. Hence, there is no merits in the petition and sufficient enough to interfere the order passed by the lower appellate Court. The civil revision petition is dismissed. No Costs. Consequently, M.P.(MD)No.1 of 2008 is closed.