C. Bagyalakshmi Petitioner v. P. Irulappan And Another S

1. The present Civil Revision Petition is directed against order of the learned Additional District Munsif, Madurai Town dated 25.8.2005, in I.A No. 955 of 2004 in O.S No. 1258 of 1995.

2. The petitioner herein and the 2nd respondent herein filed the Suit in O.S No. 1258 of 1995 against the first respondent herein on the file of the Additional District Munsif, Madurai Town for declaration that they are absolutely entitled to the suit property and in consequence, restraining the first respondent by means of permanent injunction from interfering with their possession and enjoyment of the Suit property by making further construction. In the said Suit, I.A No. 955 of 2004 has been filed for withdrawal of the Suit with liberty to institute a fresh Suit in respect of the subject matter of the Suit. The same has been dismissed by the learned Additional District Munsif, Madurai Town and the said order is under challenge in the present Civil Revision Petition.

3. The averments set forth in the affidavit filed in support of the said Application under Order 23, Rule 1(3) and Section 151, C.P.C for withdrawal of the said Suit are extracted below:

“The respondent/defendant had filed a Written Statement claiming that the suit property is being used as a common pathway by the petitioners and the respondent. He claims to have purchased his property by a sale deed; but he does not give the survey number in the description of property. We have mentioned survey number 140/9. In the re-survey number, different survey numbers have been given. The different boundaries mentioned in the description of property were the boundaries that existed long before as per the old sale deed. In view of the difference in survey number and boundaries, we have pleaded that the defendant is trying to put up unauthorised construction in the Suit property to extend his house; but on verification of the survey map, it is found that the construction of his house itself is in our survey number. In view of the above said circumstances, there is likely to be some confusion fend consequent technical defect. So, in order to avoid such technical difficulty and to give a correct picture regarding the Suit and the suit property, it becomes just and necessary that this Suit has to be withdrawn and fresh Suit has to be filed in respect of our property. The respondent/defendant cannot have any valid objections for the withdrawal of the Suit and for filing of a fresh Suit in respect of our property.”

4. The first respondent has filed the counter opposing the said Application and in that, it has been stated that the petitioners in that Application have not stated about the present survey number and its boundaries. Further, if the case of the petitioners therein is true and genuine, they could have taken necessary steps for amendment of the plaint. After considering the relevant facts and circumstances of the case, the learned Trial Judge has dismissed the Application.

5. Mr. T.R Jeyapalan, learned counsel for the petitioner, has vehemently contended that in view of certain mistake crept in with regard to the boundaries as well as the survey number, it has necessitated the petitioner to file such Application for withdrawal of the Suit. He has further pleaded that if the Suit is withdrawn with liberty to file a fresh Suit, no prejudice will be caused to the first respondent.

6. In support of his contention, he has cited the decision of the Honourable Supreme Court in Bariram v. Gaind, AIR 1982 SC 789. In the said decision, it has been held as under:

“Having considered the fact that non-pleading may prove a technical impediment and may result in the dismissal of the Appeal which may impede a fresh adjudication if a point is to be made though belated, we consider it just and proper in the interests of justice to permit the appellant-plaintiff to withdraw the Suit with liberty to file a fresh Suit as stated hereinabove.”

The said decision will not be applicable to the facts and circumstances of the present case. In that case, the counsel who has argued before the Supreme Court has accepted that the contention which has been advanced by him was not at all pleaded in the plaint and hence the counsel thereon sought the permission of the Court to withdraw the Suit with liberty to file a fresh Suit on the same cause of action or on different cause of action. Their Lordships of the Supreme Court have considered that aspect and granted permission. Hence, the said decision will not be applicable to the facts and circumstances of the case on hand.

7. The next decision cited by the learned counsel for the petitioner is M/s. Konkan Trading Co. v. Suresh, AIR 1986 SC 1009. In that decision, the Honourable Supreme Court has dealt with the case where permission has been given to withdraw the suit with liberty to file a fresh Suit on payment of costs of Rs. 100. In the subsequent Suit, the opposite party has raised the plea that without paying the costs ordered on the earlier occasion, the present Suit is not maintainable. Hence, the said decision will not be of any use to the petitioner.

8. The next decision cited by the learned counsel for petitioner is Ameena Bi v. Ameer Bi & 5 Others, 1997 (2) LW 170. That was a case where the plaintiff filed the Suit initially for injunction and later when the defendant claimed to be in possession, sought for an amendment which was negatived. The plaintiff prosecuted the case further and the Suit was decreed in favour of the plaintiff, but the lower Appellate Court set aside the said decree passed by the Trial Court. Later when the Second Appeal was pending, the plaintiff filed the Application under Section 151, C.P.C seeking relief of withdrawal of Suit, after instituting the Second Suit before the permission was granted. The Court allowed the said Application under Order 23, Rule 1, C.P.C Hence, the facts and circumstances of that case is entirely different and the ruling thereon will not be applicable to the present case on hand.

9. The learned counsel further relied upon the decision in K.S Bhoopathy v. Kokila, 2000 (3) CTC 558: AIR 2000 SC 2132. Even in that decision, it has been clearly stated that it is the duty of the Court to feel satisfied about existence of proper grounds before granting permission to withdraw the Suit with liberty to file a fresh Suit on the same cause of action.

10. The learned counsel for the petitioner has also cited the judgment in Kamayya v. Papayya, AIR 1918 Mad. 1287. There the Full Bench of this Court has held that the Appellate Court is competent to allow withdrawal of the Suit in proper cases. Hence, the said judgment will not be applicable to the facts of the present case.

11. The learned counsel for the respondent, Mr. M.V Venkateseshan, has vehemently contended that the reasons adduced in the affidavit in support of the Application for withdrawing the Suit with liberty to filea fresh Suit is unacceptable. He has further submitted that the petitioner ought to have filed a Petition for amendment of the pleadings instead of the present Application for withdrawal of the suit. He has cited the decision in R. Thiyagarajan v. Meenakshi Ammal, 1996 (2) CTC 127. In the said decision, it has been clearly held that the reason pleaded by the plaintiff for filing such an Application was not sufficient and that the Petition for amendment of the plaint alone would be the proper remedy.

12. The learned counsel for the respondent has also cited the decision Duraikannu and Others v. Malayammai, 2003 (4) LW 457, wherein it has been held as follows:

“The granting of the permission to withdraw with liberty to bring a fresh suit removes the bar of res judicata which would otherwise apply, if a fresh Suit on the same cause of action is brought. Clause (3) contemplates the circumstance in which the permission could be granted by the Court on its satisfaction namely (i) a Suit must fail by reason of formal defect and (ii) 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. Formal defect means a defect of form, which is prescribed by Rules or Procedure. A defect which goes to the root of the plaintiff's claim is not a formal defect. The formal defect may be omission to obtain permission of Court to file the Suit, mis-joinder of parties or cause of action, failure to disclose cause of action for the plaint, erroneous valuation of the subject matter of the Suit and institution of a Suit in a Court which has no jurisdiction to entertain it. The other sufficient ground is that the defect must not be due to plaintiff's own fault, hence the expression ‘other sufficient ground’ should be construed ‘ejusdem generis’ with formal defect. The failure of the plaintiff to prove his own case is no ground for allowing him to withdraw his Suit with liberty of suing again for the same subject matter.”

By citing the said decision, the learned counsel for the respondent, has vehemently contended that none of the grounds enumerated in the above said decision exists in the present case on hand.

13. I have considered the arguments of the counsel for both the petitioner and the respondents. The reason that has been adduced for withdrawal of the Suit by the petitioner, as it could be seen from the affidavit, is totally unacceptable and it is not well founded. If really, the survey number and the boundaries are not properly given in the plaint, the petitioner could very well approach the Court seeking amendment. Without doing so, the Application filed for withdrawal of Suit cannot be permitted. 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. Further, it will result in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of cases.

14. Further, as stated already, the petitioner, who could avail the benefit of filing an Application for amendment of the plaint, has failed to exercise the said right and has come forward with the present Application only with the intention to drag on the proceedings. This cannot be permitted and the Court cannot shut its eyes in such matters.

15. For the reasons stated above, the order of the learned Additional District Munsif, Madurai Town dated 25.8.2005 in I.A No. 955 of 2004 in O.S No. 1258 of 1.995 sounds reasonable. The Civil Revision Petition is therefore dismissed. Consequently, C.M.P (MD) No. 6815 of 2005 is closed. In the circumstances of the case, there is no order as to costs.