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2019 DIGILAW 50 (MAD)

Sudalaikannu v. Sudalaimuthu

2019-01-03

T.RAVINDRAN

body2019
ORDER : 1. The civil revision petition is directed against the fair and decreetal orders, dated 24.01.2007, passed in I.A.No.284 of 2006 in O.S.No.363 of 2003, on the file of the District Munsif Court, Cheranmahadevi. 2. The plaintiff in O.S.No.363 of 2003 is the revision petitioner. The plaintiff has laid the suit against the respondents/defendants for permanent injunction. Pending suit, it is noted that the revision petitioner had preferred an application for amending the suit to include the relief of recovery of possession and also for the removal of the building alleged to have been constructed by the respondents in the suit property pending the suit. The Court below had dismissed the amendment application. Aggrieved over the same, the revision petitioner had preferred a civil revision petitioner in C.R.P. (PD) (MD) No.592 of 2006. This Court after considering the rival contentions put-forth by the respective parties and noting that the defendant is already found to be in the possession of the suit property and also having averred and established that a pucca house had been built up by him in the suit property and the same is in his possession and enjoyment and the said facts had already been buttressed by the report of the Advocate Commissioner, accordingly, determining that the amendment sought for by the revision petitioner, if allowed, would cause a serious prejudice to the defence projected by the defendants and that apart, the cause of action is also attempted to be changed by the revision petitioner by way of the proposed amendment and when the revision petitioner had laid the suit, on a particular set of action, seeking the relief of permanent injunction, he cannot be allowed to take a divergent stand and accordingly, proceeded to dismiss the civil revision petition preferred by the revision petitioner. However, while dismissing the civil revision petition, this Court had observed that there is no impediment for the revision petitioner in filing a fresh suit, if he is so advised, and accordingly, directed the Lower Court to consider the same on merits and in accordance with law. 3. However, while dismissing the civil revision petition, this Court had observed that there is no impediment for the revision petitioner in filing a fresh suit, if he is so advised, and accordingly, directed the Lower Court to consider the same on merits and in accordance with law. 3. It is found that based on the above said observations of this Court in C.R.P.(PD) (MD) No.592 of 2006, the revision petitioner had preferred I.A. No. 284 of 2006, under Order XXIII Rule 1 of the Code of Civil Procedure, reiterating the observations of this Court made in the above said civil revision petition and putting forth the case that on account of the technical defect, he should be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. 4. The above said application of the revision petitioner had been seriously contested by the respondents by putting forth the case that the revision petitioner cannot be allowed to seek the permission to lay another suit on the same cause of action as the provisions of Order XXIII Rule 1 C.P.C., had not been complied with by the revision petitioner in any manner. 5. The Court below, on a consideration of the rival contentions put-forth by the respective parties, holding that the revision petitioner has not made out a case for seeking the liberty to lay a fresh suit on the same cause of action, accordingly, rejecting the above said relief sought for by the revision petitioner, however, proceeded to grant the permission to the revision petitioner/plaintiff to withdraw the suit laid by him in O.S.No.363 of 2003. Aggrieved over the same, the present civil revision petition has been preferred. 6. Aggrieved over the same, the present civil revision petition has been preferred. 6. At the outset, the revision petitioner's counsel contended that the Court below had erred in partly allowing the application and according to him, if at all the Court deems it fit to hold that the revision petitioner is not entitled to seek the liberty to file a fresh suit on the same cause of action, the only course available to the Court is to dismiss the application in toto and the Court cannot pass an order rejecting his prayer for liberty to lay a fresh suit on the same cause of action and allow the relief of the permission to withdraw the suit and in this connection, he placed reliance upon the decision in Radha Krishna vs. State, reported in AIR 1977 Rajasthan 131. In the above said decision, as rightly put-forth by the revision petitioner's counsel, when the Court holds that the plaintiff is not entitled to obtain the relief to file a fresh suit on the same cause of action, the Court should only dismiss the application preferred by the plaintiff and cannot split the application into two parts, one for withdrawal of the suit, and the other for permission to file a fresh suit and allow the former and refuse the latter and the position of law outlined in the above-cited decision reads as follows: “(D) Civil P.C. (1908), O.23, R.1-Permission to withdraw suit with liberty to file fresh Order – Principles. The Court has no power, apart from O.23, R.1, Civil P.C. to allow a suit to be withdrawn with liberty to file a fresh one, and the power has to be exercised subject to the conditions prescribed therein. When leave is granted to the plaintiff to withdraw from the suit with liberty to bring a fresh suit, the order must not be one dismissing the suit with liberty to bring a fresh suit, but one granting permission to the plaintiff to withdraw from the suit with liberty to bring a fresh suit. Where leave is refused, the Court should simply dismiss the application. It should not make an order disposing of the suit on the assumption that the plaintiff would withdraw the suit under sub-r. (1) if the application was refused. Where leave is refused, the Court should simply dismiss the application. It should not make an order disposing of the suit on the assumption that the plaintiff would withdraw the suit under sub-r. (1) if the application was refused. The Court cannot split up application under sub-r.(2) of O.23, R.1 C.P.C. into two parts, one for withdrawal of the suit, and the other for permission to file a fresh suit and allow the former and refuse the latter. (1980) ILR 32 Bom 345; AIR 1926 Cal 233; AIR 1928 Cal 273(1); AIR 1959 Raj 53 and AIR 1971 Mad 477 , Rel. on.” 7. To that extent, it is seen that the impugned order of the Court below cannot be allowed to sustain as per law. 8. Be that as it may, the revision petitioner's counsel further contended that inasmuch as the revision petitioner is unable to prosecute the suit on account of the technical defect as his amendment application had been rejected by the Lower Court as well as this Court, accordingly, he had been necessitated to prefer the above said application seeking liberty to institute a fresh suit against the respondents on the same cause of action. However, the law does not permit the revision petitioner to withdraw the suit, under Order XXIII Rule 1 of the Code of Civil Procedure, on the basis of the technical defect. As to what is the technical defect, nothing has been whispered in the application or pointed out by the revision petitioner's counsel during the course of arguments. When as per the provisions contained in Order XXIII Rule 1 C.P.C., the plaintiff would be entitled to withdraw the suit on establishing that his suit must fail by reason of some formal defect or there are sufficient grounds for allowing him to institute a fresh suit for the same subject-matter of a suit or part of the claim, in such circumstances, the Court, in the case of acceding to the above said reasons of the plaintiff, would be entitled to grant necessary reliefs to the plaintiff. In such view of the matter, when the provisions of Order XXIII Rule 1 C.P.C., do not encompass the allowing of the withdrawal of the suit, on account of the technical defect and when as above noted the revision petitioner has not established as to what is the technical defect he seeks to project for claiming the withdrawal of the suit and liberty to file a fresh suit on the same cause of action and furthermore, when there is no other sufficient ground projected by the revision petitioner for seeking the relief prayed for, in all, it is found that the Court below is fully justified in refusing to grant the liberty sought for by the revision petitioner to institute a fresh suit on the same cause of action. 9. As rightly put-forth by the respondents' counsel, the revision petitioner having lost his case for amending the plaint, both in the Trial Court as well as in the High Court, only to sustain the above said reliefs indirectly had come forward with the above said application and according to him, the revision petitioner cannot be allowed to achieve what he had been unable to secure in the amendment application by seeking liberty to file a fresh suit on the same cause of action by withdrawing the suit and in this connection, he placed reliance upon the decision in Thangavel vs. Kuppa Gounder, reported in 2009 (6) CTC 800. The said decision lends support to the contention put-forth by the respondents' counsel and the position of law outlined in the above-cited decision reads as follows: “Code of Civil Procedure, 1908 (5 of 1908), Order 23, Rule 1 – Withdrawal of Suit with Liberty to file fresh Suit – Interim Application filed by Plaintiff to amend Plaint to extent of changing length of pathway in schedule property dismissed by Trial Court and Civil Revision Petition challenging order of Trial Court also dismissed – Held : Order in Civil Revision Petition becomes final and conclusive – Plaintiff filing another I.A. to withdraw Suit with liberty to file fresh Suit on same cause of action so as to establish factum of length of pathway – Held : Order of Trial Court in allowing said I.A. incorrect in law – Right to withdraw Suit is not an absolute one – What cannot be achieved by earlier I.A. to amend Plaint cannot be achieved by grant of liberty to withdraw Suit to file fresh Suit on same cause of action – Withdrawal cannot be allowed when Defendant has acquired certain right in subject matter of Suit – Order of Trial Court materially irregular and illegal – Civil Revision Petition allowed. 10. Considering the facts and circumstances of the case, as above discussed, when the revision petitioner's application is found to be not satisfying the ingredients of Order XXIII Rule 1 C.P.C., in any manner and the revision petitioner himself has come forward with the application only to seek the reliefs prayed for on account of the technical defect, which reason is not included for seeking the reliefs prayed for under Order XXIII Rule 1 C.P.C., and furthermore, when the nature of the technical defect on account of which the revision petitioner seeks the relief has also not been explained in any manner and on the other hand, when it is found that the revision petitioner by way of the application preferred under Order XXIII Rule 1 C.P.C., is only attempting to secure the reliefs, which he had been unable to obtain by way of the amendment application as above pointed out, in all, it is found that the Court below is fully justified in refusing to grant the liberty sought for by the revision petitioner to institute a fresh suit on the same cause of action. As above noted, the Court below had committed an error in allowing the application preferred by the revision petitioner in part and to that effect the impugned order cannot be sustained. 11. For the reasons afore-stated, the fair and decreetal orders, dated 24.01.2007, passed in I.A.No.284 of 2006 in O.S.No.363 of 2003, on the file of the District Munsif Court, Cheranmahadevi, in granting permission to the revision petitioner to withdraw the suit is set aside and in other aspects, the impugned order is confirmed and on the whole, the application preferred by the revision petitioner, in I.A.No.284 of 2006, is dismissed in toto. Resultantly, the civil revision petition is dismissed with costs.