Chinnasamy vs Manickam

T. Mathivanan, J.—This Memorandum of Civil Revision has been directed against the fair and decretal Order, dated 21.3.2013 and made in I.A. No.92 of 2012 in O.S. No 4 of 2012 on the file of the learned Principal District Judge, Perambalur.

The Revision Petitioners herein are the Plaintiffs in the Suit whereas the Respondents are the Defendants.

The Revision Petitioners being the Plaintiffs have filed the Suit in O.S. No 4 of 2012 on the file of the learned Principal District Judge, Perambalur, as against the Respondents/Defendants seeking the relief of Partition.

The Suit has been resisted by the Respondents/Defendants by filing their Written Statement on 8.6.2012.

During the pendency of the above said Suit, the Revision Petitioners being the Plaintiffs have taken out an Application in I.A. No.92 of 2012 under Order 23, Rule 3 of C.P.C., to permit them to withdraw the Suit with liberty to file a fresh Suit on the same cause of action.

This Application was also resisted by the Respondents by filing their Counter Statement.

On hearing both sides and also on perusal of the related materials available on record, the learned Principal District Judge, Perambalur has proceeded to dismiss the above Petition on 21.3.2013 on the ground that the reasons assigned by the Revision Petitioners are not acceptable because the Petitioners are at liberty to amend the Plaint and rectify the defects in accordance with law.

He has also observed that when it is alleged by the Respondents that the properties were already partitioned, the Petitioners must satisfy the Court that the Suit may fail by reason of the formal defect and there are sufficient grounds for instituting a fresh Suit on the same cause of action in accordance with the provisions of Order 23, Rule 3 of C.P.C.

It may be significant to note here that the Revision Petitioners/Plaintiffs have alleged in the Petition that, "3rd item of the Suit has been mistakenly included and the extent of the 1st item has also been wrongly mentioned. Further, the framing of the Suit and the averments in the Plaint are also not as per their instruction to the Petitioners'' previous Counsel. All these facts were brought to their knowledge by their present Counsel only rectified. Some defects could not be cured by way of amendment. But in their Counter Statement, the Respondents have contended at the first instance that there is no cause of action to file the Suit for Partition as the properties among the co-sharers were already partitioned.

They have also stated that the properties were orally divided between the legal heirs of Suppan Mooppan, i.e., between Mooka Moopan, Ramasamy Moopan and Velli Moopan. Then the legal heirs of the Mooka Moopan, Ramasamy Moopan and Velli Moopan had orally divided their shares of the properties and that the Revision Petitioners/Plaintiffs themselves had divided their shares of properties and it could be proved by the document, dated 8.2.2010.

They have also contended that since the properties of the Suppan Mooppan and his Legal Heirs including the Revision Petitioners/Plaintiffs and the Defendants had orally as well as by way of documents divided their properties among themselves, there was no cause of action to file the Suit.

When the Petition is taken up for hearing, the Respondents 1 & 2 have not chosen to appear either in person or through their Counsel despite the service of Notice on them. Hence, this Court proceeds to dispose of this Petition on merits after hearing Mr. P. Valliappan, learned Counsel appearing for the Petitioners.

Based on the contentions raised, it has become necessary for this Court to extract the provisions of sub-rule (3) to Rule 1 of Order 23, C.P.C. Rule 1 of Order 23 of C.P.C. deals with withdrawal of Suit or abandonment of part of claim.

Sub-rule (3) to Rule 1 envisages that-

"Where the Court is satisfied:

a. that a Suit must fail by reason of some formal defect, or

b. that 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,

it may, on such terms as it thinks fit, grant the Plaintiff permission to withdraw from such Suit or such part of the claim with liberty to institute a fresh Suit in respect of the subject matter of such Suit or such part of the claim."

As per the provisions of sub-rule (3) to Rule 1 of Order 23 of C.P.C., the Applicant, who seeks the relief of withdrawal of his Suit, with liberty to file a fresh Suit on the very same cause of action, is under the obligation to satisfy the Court at first and if the Court is satisfied that the Suit must fail by reason of some formal defect or that there are some sufficient grounds to allow the Plaintiff to institute a fresh Suit for the subject matter of the Suit, it may grant the Plaintiff permission to withdraw from such Suit or with liberty to file a fresh Suit in respect of the subject matter of such Suit or such part of the claim.

Mr. P. Valliappan, learned Counsel has pointed out that the amendment of the Plaint is not possible and the mistake crept therein could not be cured by way of amending the Plaint and therefore, he has urged to allow the Revision Petition permitting the Revision Petitioners to withdraw the Suit with liberty to file a fresh Suit.

In support of his contention, he has placed reliance upon the decision of this Court in Rajamanickam v. P. Dhandapani and others, 2013 (5) CTC 385. In this case, the learned Single Judge of this Court, in Paragraph 34 has observed that, "...... the term ''sufficient grounds'' need not be read by applying the Concept of "ejus generis'' with the term ''formal defect'' as found in Order 23, Rule 1(3)(a) of C.P.C."

In Paragraph 35, the learned Judge has observed that, " Order 23, Rule 1(3)(b) is an independent clause. If there is any formal defect, as per Order 23, Rule 1(3)(a) then that would be sufficient for withdrawal. So far Clause (b) is concerned, it contemplates ''sufficient grounds''. The intention of the legislators is writ large. They do not want to shackle the hands of the Court in exercising their discretion to grant permission for withdrawal if there are sufficient grounds. The legislators cannot visualize consistencies and discomfitures that a Plaintiff might be experiencing in the litigative process. Hence, they left it to the discretion of the Court to consider the grounds and their sufficiency and accordingly take a decision to grant permission for withdrawal or not in appropriate cases.

Keeping in view of the above observation made by the learned Single Judge in the above cited decision, this Court finds that this is not the fit case wherein the permission could be granted to the Revision Petitioners to withdraw the Suit with liberty to file a fresh Suit on the very same cause of action. Because as contemplated under Clause (a) to sub-rule (3) to Rule 1 of Order 23 of C.P.C.

The mistake indicated by Mr. P. Valliappan is not a formal defect and equally no sufficient grounds are also available to permit the Revision Petitioners to withdraw the Suit with liberty to institute a fresh Suit in respect of the subject matter of such Suit and therefore, it has become necessary for this Court to take the risk of reiterating the contention of the Revision Petitioners/Plaintiffs.

In the Affidavit filed in support of the Petition, he has merely stated that 3rd item of the Suit has been mistakenly included and the extent of the 1st item has also been wrongly mentioned and it has also been stated that the framing of the Suit and the averments in the Plaint are also not as per their instruction to the Petitioners previous Counsel. All these facts were brought to their knowledge by the present Counsel and even after several amendments the defects would not be rectified. Hence, the present Petition has been filed seeking permission of the Court for the withdrawal of the Suit with liberty to file a fresh Suit.

In this connection, this Court would like to place reliance upon the decision of this Court in C. Bagyalakshmi v. P. Irulappan and another, 2006 (5) CTC 74, wherein, the learned Single Judge of this Court, namely, K. Venkatraman, J., has observed that,

"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 of 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."

In Paragraph 14, he has also observed that, -

"Further, as stated already, 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."

In the light of the observation made by the learned Single Judge in the aforesaid decision, this Court is also of the view that the Revision Petitioners/Plaintiffs could very'' well approach the Trial Court seeking permission to amend the Plaint, but they have not done so. But in the absence of formal defect and sufficient grounds for allowing the Plaintiffs to withdraw the Suit with a liberty to institute a fresh Suit, the Petition filed by the Revision Petitioners/Plaintiffs cannot be allowed to exist and therefore, the Revision Petitioners/Plaintiffs'' Petition is liable to be dismissed as devoid of any merit.

Accordingly, the Revision Petition is dismissed confirming the Order of the Trial Court, dated 21.3.2013 and made in I.A. No 92 of 2012 in O.S. No.4 of 2012 on the file of the Principal District Court, Perambalur. However, there will be no order as to costs. Connected M.P. is also dismissed.