Eleavarthi Nadipatha alias Ramaswami Raju and Others vs Elavarthi Pedda Venkataraju

Natesan, J.—The defendants in a suit which was permitted to be withdrawn at the appellate stage with liberty to file a fresh suit are the

petitioners before me. The suit was filed by the plaintiff for a declaration and injunction on the averments inter alia, that in an earlier partition suit

wherein there was a compromise decree Ex.A-2 the suit property fell to the share of the plaintiff, and that while the plaintiff had been in separate

and exclusive possession of the same, the defendants without any right threatened to cut and carry away the crops. According to the defendants

amongst other pleas it was contended that the suit property was not divided. The trial Court came to the conclusion that the plaintiff had failed to

prove his exclusive right to the property. In the plaint, the suit properties are given survey numbers. In correlating it with a compromise decree the

plaintiff referred to an item of the extent of 3 acres and 37 cents shown as Sowdabavi Kindamadi east of the Sowdabavi well. The trial Court

came to the conclusion that this item on its view of the evidence was in Kondapalayam village whereas according to the plaintiff the suit property

was in Karikal village. On appeal by the plaintiff, on an application evidently made to the court by the plaintiff the learned Subordinate Judge has

taken the view that the suit has failed by reason of the discrepancy which is a defect formal in nature. I am unable to understand how the learned

Subordinate Judge has considered the failure of the suit as on a technical or formal ground. It cannot be ignored that the suit is for injunction by a

party allegedly in exclusive possession. The plaintiff himself in such a case would have no difficulty in setting out the property correctly and

describing it accurately in the plaint. One may therefore presume that the plaintiff has attempted to give all such particulars as he could give with

reference to the property which accordingly to him was in his exclusive possession and was attempted to be trespassed upon. The difficulty he

found was in correlating the plaint item with the partition decree under which he claimed exclusive title to the same.

If by reason of any inaccurate description of the property in the plaint, correlation became difficult the proper thing would be to apply to the

court to amend the schedule to the plaint so to describe it properly according to the realities. If in spite of rectification of the description the plaintiff

cannot correlate the suit property with any item which has been allotted to him exclusively in the compromise decree, then the plaintiff fails on

merits. If the description in the plaint is accurate and the difficulty is in the description of the same property in the compromise decree then it is a

matter for evidence. According to the trial Court, the plaintiff has failed to correlate the item in the suit with the items which had been exclusively

allotted to him in the partition. One cannot say that the suit in the circumstances has failed in the trial court by reason of any formal defect. The

appellate court should be slow and cautions to exercise the powers under O. 23, R. 1 and permit a defeated plaintiff to withdraw his suit with

liberty to file a fresh suit and re-agitate the matter over once again. When the defect, if any, could be cured by an amendment, the court should not

ordinarily permit the withdrawal of the suit with liberty to institute a fresh suit.

Learned counsel for the petitioner referred me to the decision of this Court in Venkata v. Nimmakayala, AIR 1949 Mad 441, where

Panchapakesa Ayyar J observes:

Any court allowing a party to withdraw from a suit with liberty to file a fresh suit at such a late stage as this, after arguments also have been

addressed in appeal, is bound to give satisfactory reasons falling under O. 23, R. 1, C.P.C. The lower appellate court has undoubtedly failed to do

so. It is not clear what it meant by saying that the suit was defective for want of a proper sketch showing the disputed rastha and the situation of the

various lands which appeared in the evidence. There were two sketches before it, namely, the plan filed by the plaintiff along with his plaint and the

plan filed by the defendants Ex.D-1. If it wanted a more detailed and accurate sketch than either of these, it was within its powers to direct the

parties to get a commissioner appointed to draw a correct sketch with full details, or to suggest a local inspection by itself to clear up all the doubts

it had

The observations therein are apposite in the present context. The misdescription in this case, assuming there is a misdescription, cannot be said to

be a formal defect necessitating the withdrawal of the suit after the trial court has given a decision in the matter. The lower appellate court has failed

to bear in mind the principles that should govern the granting of permission for withdrawal of suit under O. 23, R. 1, C.P.C particularly at the

appellate stage giving liberty to plaintiff to institute a fresh suit on the same cause of action. In the result the order of the lower court granting

permission to the plaintiff to withdraw the appeal and the suit is set aside. The appellate court will restore the appeal to its file and dispose of the

same on the merits. Of course, it will be open to the plaintiff, if he finds the need for it, to apply for amendment of the plaint, and the court will

consider the application on its merits. If the amendment necessitates and the interests of justice require further evidence in the matter, the court may

call for a finding. This will be more than sufficient to meet the ends of justice if any required in the case. In the result the revision is accordingly

allowed. No costs.

DJ/RSK/D.V.C.

Revision allowed.