Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 4460 (MAD)

Kalimuthu v. Aravan

2018-12-07

T.RAVINDRAN

body2018
JUDGMENT : The civil revision petition is directed against the fair and decreetal orders, dated 10.06.2009, passed in I.A. No. 275 of 2009 in O.S.No.219 of 2001, on the file of the District Munsif Court, Thuraiyur. 2. It is noted that the respondents had laid the suit, in O.S.No.219 of 2001, against the revision petitioners in respect of the Well lying in Survey No. 496/8B and 5 H.P. Motor Pumpset fitted to the same and accordingly, sought for the reliefs of declaration and permanent injunction with reference to the same. The abovesaid suit of the respondents had been resisted by the revision petitioners contending that the subject matter of the suit, namely, Well abovestated does not belong to the respondents exclusively and on the other hand, the Well in dispute and 0.25 Cents of land lying on the western side of Survey No.496/8B belonged to the respondents as well as the revision petitioners jointly and therefore, contended that the respondents are not entitled to seek and obtain the reliefs sought for in the suit. While so, it is seen that the respondents had preferred I.A.No.275 of 2009, under Order XXIII Rule 1 of the Code of Civil Procedure, seeking permission to withdraw the suit laid by them and also praying for liberty to lay another suit in respect of the same cause of action at a later point of time. In connection with the same, the respondents would putforth the case that inasmuch as the dispute arose between the parties as regards the suit Well, they had been necessitated to institute the suit against the revision petitioners and according to them, at present, the revision petitioners have not put forth any serious objection in their enjoyment of the suit Well and therefore, according to them, the continuance of the suit had become unnecessary and further would state that if the suit is proceeded further, the same would cause unnecessary embarrassment and dispute between the parties and therefore, putting forth the case that they are not interested in continuing the suit, accordingly, prayed for the withdrawal of the suit, however, would also putforth the case that in the event of the respondents at a later point of time object their enjoyment of the suit Well, they should be granted the liberty to institute the suit against them on the same cause of action and on that reasonings, laid the abovesaid application. 3. The abovesaid application of the respondents had been stiffly resisted by the revision petitioners contesting that they had not permitted the respondents to enjoy the suit Well on their own and on the other hand, according to the revision petitioners, all along, they had been contending that the suit Well is owned jointly by the respondents and the revision petitioners and in such view of the matter, according to the revision petitioners, the plea putforth by the respondents that the revision petitioners had permitted the respondents to enjoy the suit Well exclusively is false and therefore, their further case that, on that account, they are not continuing the suit and thereby, necessitated to file the application for withdrawal of the suit is false and according to the revision petitioners, they have no objection in the respondents withdrawing the suit laid by them, but the respondents cannot be allowed to obtain the liberty to institute a fresh suit as regards the subject matter on the same cause of action as prayed for and on that footing, prayed for the dismissal of the respondents' application. 4. The Court below, based on the footing that the revision petitioners have no serious objection to the abovesaid application preferred by the respondents, accordingly, proceeded to grant them permission to withdraw the suit and also granted them liberty to institute a fresh suit as regards the same subject matter on the same cause of action against the revision petitioners. Impugning the same, the present civil revision petition has been preferred. 5. As rightly putforth by the revision petitioners' counsel that for maintaining the application under Order XXIII Rule 1 C.P.C., two conditions have to be satisfied by the respondents, namely, they seek to withdraw the suit on the footing that the said suit must fail by reason of some formal defects or there are sufficient grounds for allowing them to institute a fresh suit for the subject matter of the suit or part of the claim made therein. It is not the case of the respondents that they are seeking the withdrawal of the suit laid by them for the reason that the suit preferred by them is defective by the reason of some formal defects. Therefore, it is noted that the first condition is not satisfied by the respondents. It is not the case of the respondents that they are seeking the withdrawal of the suit laid by them for the reason that the suit preferred by them is defective by the reason of some formal defects. Therefore, it is noted that the first condition is not satisfied by the respondents. Now, according to the respondents, inasmuch as the revision petitioners had stopped from interfering with their enjoyment of the suit Well, they have deemed it fit not to continue the suit against the revision petitioners and accordingly, prayed for the withdrawal of the suit. As regards the prayer of the withdrawal of the suit laid by the respondents, the revision petitioners have no serious objection. All that they would object is that the relief sought for by the respondents for granting them liberty to prefer another suit against the revision petitioners on the same cause of action, as regards the subject matter, cannot be sustained. When according to the revision petitioners, throughout they had been resisting the respondents' claim of exclusive title to the suit Well and putting forth a case that the suit Well belongs to the respondents as well as the revision petitioners jointly, in such view of the mater, the case of the respondents that the revision petitioners had not interfered with their exclusive possession and enjoyment of the suit Well and therefore, they do not want to continue the suit as such cannot be countenanced readily. With reference to the abovesaid case of the respondents, when the same is not admitted by the revision petitioners, the Court below is found to be not justified in accepting the case of the respondents, without any material. Resultantly, when the respondents thereby have not projected any sufficient ground for allowing them to institute a fresh suit in respect of the subject matter against the revision petitioners on the same cause of action, the second limb of the Order XXIII Rule 1 C.P.C., is also found to be not satisfied by the respondents and in such view of the matter, the order of the Court below granting them liberty to institute a fresh suit on the same cause of action is found to be legally unsustainable and accordingly, liable to be set aside. 6. 6. In support of his contentions, the counsel for the revision petitioners placed reliance upon the decision in N. Thiayagarajan and another vs. Veerattanathan, reported in 2006 (5) CTC 43 . The principles of law outlined in the abovecited decision are taken into consideration as applicable to the case at hand and followed. 7. In the light of the above discussions, when the respondents are found to have not satisfied the ingredients of Order XXIII Rule 1 C.P.C., the Court below is not justified in granting them liberty to institute a fresh suit on the same cause of action as regards the subject matter at a later point of time and accordingly, the impugned order granting the respondents liberty to institute a fresh suit against the revision petitioners in respect of the subject matter at a later point of time is set aside and in other aspects, the impugned order is confirmed. 8. Accordingly, the civil revision petition is allowed with costs.