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Case Number

C.R.P.NPD (MD) No. 248 of 2015

Advocates

Mr. K. Govindarajan
Mr. K. Kumaravel

Judges

Pushpa Sathyanarayana, J.

Acts

clause (a) or (b) of Order 23 Rule 3 of the Code of Civil Procedure.
Order 6 Rule 17 of the Code of Civil Procedure.

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Smart Summary

Analytical Summary of the Opinion — Civil Revision concerning withdrawal of suit

Factual and Procedural Background

This Civil Revision Petition was filed by the second defendant challenging an order of the learned District Munsif, Muthukulathur permitting the plaintiffs to withdraw their suit and to file a fresh suit on the same cause of action.

The original suit (filed in 2004) sought a bare injunction restraining the defendants from interfering with the plaintiffs' peaceful possession. The trial had been conducted and the matter was posted for arguments. In I.A. No. 424 of 2014 the plaintiffs asserted that the plaint described the property with survey number 192/09 but that the defendants, during transfer, had changed the survey number to 192/14. The plaintiffs said they became aware of the altered survey number during the pendency of the suit when the second defendant used survey number 192/14 in a settlement deed dated 21/9/2012. The plaintiffs contended that without correcting the survey number they would not be able to enjoy the fruits of any decree and therefore sought permission to withdraw the suit and to file a fresh suit on the same cause of action.

The defendants resisted the withdrawal application as an abuse of the court's process, noting the suit had been pending since 2004, that the plaintiffs had participated in patta proceedings (and thus should have known of any survey-number change), and that the plaintiffs could and should have applied to amend the plaint earlier. The District Munsif allowed the plaintiffs' application, subject to payment of Rs. 3,000 as costs to the defendants. The plaintiffs thereafter instituted a second suit numbered O.S. No. 11 of 2015. Aggrieved by the District Munsif's order dated 8/12/2014 in I.A. No. 424 of 2014 in O.S. No. 89 of 2004, the defendants filed the present Civil Revision Petition.

Legal Issues Presented

Whether the order of the learned District Munsif permitting the plaintiffs to withdraw the suit and to file a fresh suit on the same cause of action is sustainable.
Whether the plaintiffs' asserted defect (incorrect survey number in the plaint) constitutes a "formal defect" or sufficient ground under Order 23 Rule 3 of the Code of Civil Procedure to permit withdrawal at the stage when trial and arguments have concluded.
Whether the plaintiffs should have availed themselves of the amendment remedy under Order 6 Rule 17 of the Code of Civil Procedure (and whether such amendment would have been a pre‑trial amendment), instead of seeking withdrawal after trial concluded.

Arguments of the Parties

Petitioners / Defendants' Arguments

Allowing withdrawal after the trial was over and arguments had been heard and reserved for judgment is an abuse of the process of court.
The suit was instituted in 2004 and the plaintiffs had participated in patta proceedings; therefore the plaintiffs' claim that they only became aware of the survey-number change during the pendency of the suit is unacceptable.
The alleged defect (survey number mismatch) was not a formal defect that justified withdrawal; the plaintiffs could and should have amended the plaint under Order 6 Rule 17 CPC prior to trial.
The plaintiffs had pursued interlocutory applications and Civil Revision Petitions (C.R.P. Nos. 2142 and 2143 of 2014) relating to other matters; defendants prayed for dismissal of the withdrawal application.

Respondents / Plaintiffs' Arguments

The plaint described the property with survey number 192/09 but the defendants had changed the patta to 192/14; this change was only discovered during the pendency of the suit when a settlement deed dated 21/9/2012 disclosed the survey number 192/14.
The defendants clandestinely registered sale deeds in Kerala, and as a consequence the plaintiffs did not have knowledge of the survey-number change at the time of filing the suit.
The plaintiffs had not sought declaration of title in the plaint, which they characterized as a potential technical defect; therefore they sought withdrawal and liberty to file a fresh suit on the same cause of action so as to correct these issues.
Plaintiffs relied on certain precedents which they said supported withdrawal in their factual matrix (their counsel cited Balasundara Achari v. Shanmugam and Kokila v. K.S. Bhoopathy, arguing those authorities were supportive, though the court distinguished their applicability).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
C. Bagyalakshmi v. P. Irulappan, 2006 (5) CTC 574	Permission to withdraw a suit should not be allowed where an amendment would have been the appropriate remedy; permitting withdrawal may annul vested rights of defendants/third parties and waste court time.	Cited by the Court as authority that mere defects in survey number/description do not justify withdrawal where an amendment remedy exists and allowing withdrawal can prejudice defendants and waste judicial resources.
K. Chinna Vaira Thevar v. S. Vaira Thevar, (1982) 95 L.W. 566 : AIR 1983 Madras 160	The plaintiff's failure or inability to secure necessary evidence or to prove his case is not a ground to permit withdrawal with liberty to file a fresh suit; allowing such a practice would render litigation endless.	Relied upon to support the proposition that failure to establish a case or the absence of evidence does not constitute "sufficient grounds" under the rule permitting withdrawal; such permissiveness would frustrate finality.
Gopireddy Prabhakar Reddy v. Gopireddy Suryanarayana Reddy, 2013 (1) ALT 56	This authority was cited by counsel (specific principle not elaborated in the opinion).	The Court recorded reliance placed on this decision by counsel; the opinion does not elaborate a distinct application beyond acknowledging the citation.
Balasundara Achari v. Shanmugam, 2014 (4) L.W. 713	In that case the withdrawal petition was filed immediately after commencement of trial and an amendment application was filed — facts distinguishable from the present case.	The Court noted the factual distinction: because in that case amendment was sought contemporaneously and withdrawal occurred early in trial, it was not analogous to the present facts where trial and arguments concluded before withdrawal.
Kokila v. K.S. Bhoopathy, 1998 (3) CTC 16	Cited by the respondents in support (the opinion notes the citation but states it has no application to the present case).	The Court observed the citation but concluded it did not apply to the present factual situation.

Court's Reasoning and Analysis

The Court framed the sole question as whether the District Munsif's order permitting withdrawal and filing of a fresh suit on the same cause of action was sustainable. The Court proceeded by examining the timing, the available procedural remedies under the Code of Civil Procedure, and relevant precedents.

Key steps in the Court's analysis:

The Court observed that the plaintiffs filed the withdrawal application after nearly a decade of litigation and after having driven the defendants through multiple interlocutory applications and Civil Revision Petitions; this timing undermined the plaintiffs' stated reason for withdrawal.
The Court held that if the survey number in the plaint was a mistake, the plaintiffs had a statutory remedy by way of amendment under Order 6 Rule 17 of the Code of Civil Procedure, and that such an amendment is expected to be a pre-trial amendment. The plaintiffs, however, allowed the trial to proceed, including completion of arguments, and only then sought to withdraw — an act the Court described as impermissible in law.
Drawing upon cited authorities (notably C. Bagyalakshmi v. P. Irulappan and K. Chinna Vaira Thevar v. S. Vaira Thevar), the Court emphasized that withdrawal with liberty to file a fresh suit should not be used to cover up omissions or failures in the original suit and that allowing such withdrawal may prejudice defendants or third parties and waste public judicial time.
The Court defined the concept of a "formal defect" (i.e., defects that go to the root of the claim such as lack of permission to sue, mis-joinder of parties, failure to disclose cause of action, or lack of jurisdiction) and stated the further requirement that any formal defect relied upon must not be attributable to the plaintiffs' own fault.
The Court rejected the idea that the plaintiffs' failure to establish their case (or the discovery of evidentiary difficulties) could be converted into grounds for withdrawal. In particular, the Court held that Order 23 withdrawal cannot be misused to obtain another opportunity to litigate the same cause of action where statutory amendment remedies were available but not invoked.
The Court noted the plaintiffs had not even filed an amendment application under the Code. Given the availability of that remedy and the prejudice to defendants from reopening litigation, the District Munsif should not have granted withdrawal. The Court concluded that the plaintiffs failed to establish either a formal defect or sufficient grounds under clauses (a) or (b) of Order 23 Rule 3 CPC, rendering the trial court's order erroneous and unsustainable.

Holding and Implications

Holding: The Civil Revision Petition is allowed. The order dated 8/12/2014 in I.A. No. 424 of 2014 in O.S. No. 89 of 2004 passed by the District Munsif Court, Muthukulathur is set aside. No costs were awarded, and the connected Miscellaneous Petition is closed.

Implications:

Direct effect: The permission earlier granted by the District Munsif to the plaintiffs to withdraw the suit and file a fresh suit on the same cause of action has been revoked by this Court's order; the trial court's order is set aside.
Procedural guidance: The Court reaffirmed that where a defect in the plaint can be remedied by amendment (Order 6 Rule 17 CPC), the plaintiff must ordinarily pursue that remedy before resorting to withdrawal under Order 23. Withdrawal after conclusion of trial and arguments, without having sought appropriate pre‑trial amendment, is not permissible and may be refused as an abuse of process.
Broader implications: The opinion focuses on the direct consequences for the parties and the proper application of Order 6 and Order 23 CPC in the factual matrix presented. The opinion does not set out an expansive new principle beyond its application to the present facts and the Court's interpretation of when withdrawal is permitted.

Result recorded in the opinion: Civil Revision Petition allowed; order in I.A. No. 424 of 2014 set aside; no costs; connected Miscellaneous Petition closed. (VCJ/VCS)

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Annasamy Pandian (Died) & Another v. V. Rajendran & Another

This Civil Revision Petition is filed by the second defendant, aggrieved by the order permitting the plaintiffs to withdraw the suit and file a fresh suit on the same cause of action.

2. The plaintiffs had laid the suit for a bare injunction, restraining the defendants from interfering with the peaceful possession. The suit is filed in the year 2004. Now, the trial is over and the suit is posted for arguments.

3. The plaintiffs in I.A No. 424 of 2014 had contended that in the suit, the description of the property with regard to the survey number is given as 192/09. But the defendants, while transferring the patta in their names had changed it as 192/14. The plaintiffs were not aware of the said change of survey number at the time of filing of the suit. During the pendency of the suit, the second defendant had mentioned the survey number as 192/14 in a settlement deed dated 21/9/2012 written in favour of his son. The said change of survey number came to the knowledge of the plaintiffs only during the pendency of the suit. Therefore, without changing the survey number, if the suit is proceeded with even in the event of success, the plaintiffs will not be able to enjoy the fruits of the decree.

4. According to the plaintiffs/respondents, the defendants had clandestinely registered the sale deeds in Kerala. Therefore, they did not have the knowledge at the time of filing of the suit. Besides, the plaintiffs had not sought for declaration of title which may be a technical defect at a later point of time. Therefore, the plaintiffs had sought for withdrawal of the suit and file a fresh suit on the same cause of action.

5. The same was resisted by the defendants/petitioners that it was an abuse of process of Law to withdraw the suit after the trial is over and arguments were heard and reserved for judgment. The suit is filed in the year 2004. In the patta proceedings alleged in the affidavit, the plaintiffs were a party and he had taken active part of the same. Therefore, the allegation that the plaintiffs had knowledge about the same only during the pendency of the suit is unacceptable.

6. The defendants also contended that it is not a formal defect for the plaintiffs to withdraw the suit and file a fresh suit. The plaintiffs had filed C.R.P Nos. 2142 and 2143 of 2014 in which common orders were passed on 27/10/2014. In the said Civil Revision Petitions, this Court had directed the trial Court to dispose of the suit on merits within a period of six weeks from the date of receipt of the copy of the order. The said revisions were challenging the dismissal of the petitions to reopen the case and recall P.W 1. Hence the defendants had prayed for the dismissal of the application.

7. The learned District Munsif, Muthukulathur, who heard the applications, allowed the same permitting the plaintiffs to withdraw the suit and file a fresh suit on the same cause of action on payment of Rs. 3,000/- as costs payable to the defendants. Aggrieved by the same, the present revision has been filed by the defendants as petitioners.

8. Now, it is stated that pursuant to the order of the learned District Munsif, Muthukulathur, the second suit has also been filed by the plaintiffs which has been numbered as O.S No. 11 of 2015 on the file of the District Munsif, Muthukulathur.

9. Heard the learned counsel appearing for the petitioner and the respondents.

10. The only question that has to be decided is whether the order passed by the learned District Munsif, Muthukulathur is sustainable.

11. The objection of the defendants is that the application is filed after ten years having driven the defendants from pillar to post by filing several interlocutory applications and Civil Revision Petitions. The reason given by the plaintiffs for withdrawing the suit is also not convincing and acceptable as the same had been filed after almost a decade, after filing of the suit. If the survey number specified in the suit schedule is a mistake, it was always open to the plaintiffs to have amended the same by filing an application under Order 6 Rule 17 of the Code of Civil Procedure. Even if an amendment application is to be filed, it has to be a pre-trial amendment. But in this case, the plaintiffs allowed the trial to go on, the arguments to be completed and when the judgment is about to be pronounced has come up with this application for withdrawal of the suit which is impermissible in law.

12. The learned counsel for the revision petitioners placed his reliance on C. Bagyalakshmi v. P. Irulappan reported in (2006 (5) CTC - 574), wherein this Court, after considering several judgments had given a finding in paragraph 13 as follows:—

“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.”

13. The learned counsel appearing for the petitioners also cited the decision K. Chinna Vaira Thevar v. S. Vaira Thevar ((1982) 95 L.W 566 : AIR 1983 Madras - 160), wherein in paragraph 13, it is held as follows:—

“After a due consideration of the matter, we are of the view, that the failure or inability of the plaintiff to secure necessary evidence to support his case will not be a ground as contemplated in the said Rule. The expression ‘sufficient grounds’ occurring in the aforesaid Rule will not take in dismissal of a suit on the ground that the plaintiff has not established his case. If it is otherwise, in all cases where a suit or appeal is dismissed on merits, the plaintiff or appellant, as the case may be, may come forward with an application under the said Rule to have the suit withdrawn, with liberty to file a fresh suit later on, on the same cause of action. If such a thing is permitted, there will be no end to any litigation. Therefore, the legislature would not have contemplated ‘dismissal of a suit on merits’ as being a sufficient ground for permitting the plaintiff to withdraw the suit with liberty to file a fresh suit. The failure of the plaintiff to prove his case is no ground fro allowing him to withdraw the suit under R. 1(3)(a) of 0.23 The object of the Rule is not to enable the plaintiff after he has failed to establish his case by adducing requisite evidence to have a further opportunity to file a fresh suit to reagitate the matter so as to prejudice the other side.”

14. He also placed reliance on Gopireddy Prabhakar Reddy v. Gopireddy Suryanarayana Reddy reported in (2013 (1) ALT-56).

15. Reliance was placed on Balasundara Achari v. Shanmugam reported in (2014 (4) L.W - 713) by the counsel for the respondent/plaintiff. In the said case, the withdrawal petition was filed immediately after the commencement of the trial and an amendment application was also filed. Therefore, the respondents cannot equate the facts with his case. The respondents also cited Kokila v. K.S. Bhoopathy reported in (1998 (3) CTC -16) in support of his contention which also has no application to the present case.

16. From the above decisions, it is clear that the defect mentioned by the plaintiffs is not a ‘formal defect’. A ‘formal defect’ is one which goes to the root of the claim. If the plaintiffs had omitted to obtain the permission of the Court to file the suit or if there is a mis-joinder of parties or failure to disclose the cause of action or when such failure is erroneous, or when the Court has got no jurisdiction, they may be prescribed as ‘formal defect’.

17. The second requirement is that any ‘formal defect’ must not be due to the fault of the plaintiffs. The failure of the plaintiffs to establish his case cannot be the ground to allow him to withdraw the suit with liberty to file another suit on the same cause of action. The withdrawal of the suit contemplated under Order 23 of the Code of Civil Procedure cannot be allowed to be misused by the parties.

18. As rightly contended by the learned counsel for the petitioner, the plaintiffs had not even cared to file an amendment application which provision is available to the plaintiffs under the Code of Civil Procedure. When he has not exercised the right available to him under the Code, the Courts cannot give liberty to withdraw the suit. By allowing the withdrawal of the suit, the hardship that the defendants would be put to cannot be compensated. This is the reason why the legislature thought it fit to seek the permission of the Court under sub-Rule 3 to withdraw the suit and reserve the liberty for another round of litigation on the same cause of action. It is not a mere withdrawal of a suit. But the plaintiffs had filed the application to cover up all the omissions and failures in the second suit on the same cause of action. No doubt, the defendant has got the liberty to contest the second suit, but for no fault of his, the defendant cannot be penalised. Thus, for withdrawal of the suit, the plaintiffs have to either establish a good ground under clause (a) or (b) of Order 23 Rule 3 of the Code of Civil Procedure. The plaintiffs having failed to establish either a ‘formal defect’ or sufficient grounds for withdrawal of the suit cannot be permitted to do so. The trial Court without looking into all these aspects had erroneously allowed the application which is unsustainable.

19. In the result, this Civil Revision Petition is allowed and the order passed in I.A No. 424 of 2014 in O.S No. 89 of 2004 dated 8/12/2014 on the file of the District Munsif Court, Muthukulathur is set aside. No costs. Consequently, the connected Miscellaneous Petition is closed.

VCJ/VCS

Annasamy Pandian (Died) & Another v. V. Rajendran & Another

Analytical Summary of the Opinion — Civil Revision concerning withdrawal of suit

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners / Defendants' Arguments

Respondents / Plaintiffs' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Annasamy Pandian (Died) & Another v. V. Rajendran & Another

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