Duraikannu, Meenakshi Ammal, Sellammal and Seeniammal vs Malayammal

A. Kulasekaran, J.—The Plaintiffs 2 to 5 in the suit are the petitioners herein. The Plaintiffs have filed the suit O.S. No. 728 of 1987 before

the Additional District Munsif, Namakkal for declaration and injunction. Before the trial court, both the plaintiffs and defendant have let in oral and

documentary evidence. After considering the same, the trial court dismissed the suit. Aggrieved by the judgment and decree passed by the trial

court, the petitioners herein have preferred A.S. No. 275 of 2002. Pending appeal, the petitioners have filed I.A. No. 8 of 2002 under Order 23

Rule 1 (3) CPC seeking permission of the Court to withdraw the suit with liberty to file a fresh suit on the same cause of action. After affording

opportunity to both sides, the first Appellate Court dismissed the application, which is challenged in this revision.

Mr. Valliappan, learned counsel appearing for the petitioners submitted that the first Appellate Court erred in dismissing the application filed

under Order 23 Rule 1 (3) CPC without following the principles enunciated therein; that the Court below failed to note that the respondent herein

claims title from one Pachaiyammal, wife of Marudhamuthu Udayar and the petitioners herein claim title from Pachaiyammal, Wife of Subbaraya

Udayar and the identity in the names of Predecessors in title of both parties was not clarified properly in the suit; that because of the technical

omission stands in the way of proper appreciation of points in issue, the petitioners were constrained to file the petition under Order 23 Rule 1 (3)

CPC to withdraw the suit with the view to avoid formal defect and for making proper submission and prayed for setting aside the order passed by

the first Appellate Court.

The learned counsel appearing for the petitioners relied on the decision of this Court reported in (Esanya Madalayam Religions Institution owned

by Koviloor Muthuramalingam Gnana Desigar Madalayam, rep. by its Madathipathi Sri-la-Sri Nachiappa Gnanadesiga Samigal Vs.

Thiruvannamalai Sevasramam Educational Trust, rep. by its Secretary Dr. B. Subbarayan) 1999 MLJ Volume 2 Page No.360.

In this case, the plaintiff has filed two suits against the defendants for permanent injunction, when the defendants are in possession. The Plaintiff

intended to file a comprehensive suit after withdrawing the earlier suits. This Court held that though in the absence of formal defect, if there is

sufficient grounds or cause to withdraw the suit, hence leave could be granted by the Court.

This revision lies in a narrow campus. The petitioners have filed the application under Order 23 Rule 1 (3) CPC seeking permission of the Court

to withdraw the suit and to file a fresh suit for the very same cause of action. Order 23 Rule 1 (3) CPC runs as follows:-

Withdrawal of suit or abandonment of part of claim -

(3) 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.

Under Clause (b) of Order 23 Rule 1 (3), suit can be withdrawn with a liberty to sue afresh on sufficient grounds. The expression ""sufficient

grounds"" must be read ''ejusdem generis'' with clause (a) and a ground to be sufficient ground must be similar or alike to the cause mentioned in

Order 23 Rule 1 (3) (a).

No doubt, a Court of appeal has power in a proper case to grant permission to withdraw a suit with liberty to file a fresh suit, however, such

power should be used very cautiously by a Court of appeal. The Plaintiff/appellant is not entitled, as a matter of right to withdraw his suit and he

will not be permitted to do so if the effect of allowing him to withdraw it would be to deprive the defendant of the benefit of the lower court''s

adjudication in his favour.

The granting of the permission to withdraw with liberty to bring a fresh suit removes the bar of resjudicata 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, misjoinder 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.

The object of the Rule is not to enable a plaintiff, after he failed to conduct his suit with proper care and diligence and after his witnesses failed

to support his case, to obtain an opportunity of commencing the trial afresh in order to avoid the result of his previous bad conduct of the case so

as to prejudice the opposite party.

The sufficient grounds are like the evidence being not available for no fault of the plaintiff, the suit being pre-matured and the cause of action

accruing pending the suit, the plaintiff has failed to put in evidence an important document and where the plaintiff had been mislead by the absence

of a specific denial by the defendant.

After satisfaction, the Court may grant permission. The matter of granting permission under this Rule is within the discretion of the Court. The

Court, when granting permission under this Rule must give its reason for granting such permission, although in the case of refusal there is no such

obligation.

In this case, the petitioners herein wants to withdraw the suit on the ground that the respondent claims her title under a sale deed said to have

been executed by one Pachiammal, wife of Marimuthu Udayar, who is no more and the petitioners herein claim their title and possession from one

Pachiammal, wife of Subbaraya Udayar and that the identity of the names between two different person was not clarified properly in the suit by the

lower court, hence they want to withdraw the suit as this technical omission stands in the way of enquiry of the appeal. The appellate Court found

that both parties trace their title and possession of the suit property by producing so many documents, adducing oral evidence before the trial court

and on the basis of the evidence by which the trial court decided the right of the parties and if the petition is allowed as prayed for, it will affect the

vested right of the respondent herein and ultimately dismissed the application to withdraw the suit.

The respondent relied on the decision of the Supreme Court reported in R. Rathinavel Chettiar and Another Vs. V. Sivaraman and Others,

before the lower Appellate Court wherein it was held that withdrawal of suit at appellate stage having effect of destroying or nullifying the decree

affecting the rights of the parties vested under the decree cannot be allowed as a matter of course and such withdrawal can be allowed only when a

strong case is made out. The said decision of the Honourable Supreme Court, relied on by the respondent before the lower Appellate Court is

squarely applicable to the facts and circumstance of the case.

As mentioned supra, the Rule is not to enable the Plaintiffs after they fail to conduct the suit with proper care and diligence, hence the lower

appellate Court is right in dismissing the application to withdraw the suit. The decision relied on by the counsel for the petitioner is not applicable to

the facts and circumstance of the case on hand. Therefore, interference of this Court is unwarranted.

With the result, the revision fails, liable to be dismissed and accordingly dismissed. No costs. Connected CMP is closed. What are all stated

above need not be taken into account by the appellate Court at the time of deciding the appeal on merits.

The learned counsel appearing for the petitioner prays this Court to observe the right of the petitioners herein to approach the appellate Court

for adducing additional evidence. Such an observation may not be required. In case such a petition is filed, it is for the appellate Court to decide

the same on its own merits and in accordance with law.