Joseph and Siluvairajan vs Jeyaseeli @ Cisili, Xavier @ Xavier Christober Nayagam and Arul Flower Mary

S. Palanivelu, J.—The petitioners are the first and third plaintiffs in O.S. No. 730 of 1995 on the file of the II Additional District Munsif,

Nagercoil. The respondents are first and third defendants in the suit. The suit was filed for declaration of title to the suit property and for injunction.

The II Additional District Munsif, Nagercoil dismissed the suit with costs on 01.07.2002. The plaintiffs preferred appeal in A.S. No. 31 of 2002

on the file of the II Additional Subordinate Judge, Nagercoil. While the appeal was pending, they filed an application to withdraw the suit with

liberty to file a comprehensive suit.

Earlier, the Appellate Court passed a conditional order imposing a cost of Rs. 600/-. Thereafter, the respondents herein preferred C.R.P. No.

321 of 2005 before this Court, in which this Court after hearing both parties set aside the order passed by the Appellate Court and remitted back

the matter to the said Court to reconsider the prayer of the petitioners. Thereafter, the matter was again taken up by the learned II Additional

Subordinate Judge, Nagercoil and by means of an order dated 18.08.2008, the petition was dismissed. The said order is challenged before this

Court in this Revision Petition.

The learned Counsel for the petitioners Mr. T. Selvakumaran, would submit that since all the plaintiffs and defendants are not parties to the

interlocutory applications an opportunity may be afforded to the petitioners to implead all the parties to the suit and to have an enquiry before the

Appellate Court. It is his further contention that the prayer of leave to withdraw the suit with liberty to file the comprehensive suit is sustainable, in

view of the fact that a deed is sought to be declared as void ab initio.

Conversely, the learned Counsel for the respondent Mr. K.P. Narayanakumar, would submit that by virtue of the disposal of the original suit,

the defendants have acquired vested right and in derogation of the said rights, the plaintiffs cannot be permitted to withdraw the suit, that Order 23,

Rule 3 provides for withdrawal of the suits only on sufficient grounds and such grounds are not at all made out by the plaintiffs in this case and that

the proposed suit is a comprehensive suit for partition, in which the plaintiffs are to take a plea that they have got shares, as against the pleadings in

the present suit that they are exclusive owners of the property.

The learned Counsel for the respondents would draw attention of this Court to a decision of this Court reported in The Church of South India

Tirunelveli Diocesan Trust Association, Tuticorin Pastorate Committee Vs. V. Ponkasamuthu, , wherein this Court was of the view that once the

rights of the defendants are ascertained and decided in a suit, they have acquired vested rights and in prejudice to their rights, the plaintiffs could

not be permitted to withdraw the suit. The operative portion of the judgment goes thus:

The plaintiffs-respondents had suffered a decree of dismissal of their suits for bare injunction. Now, their intention is to file a suit seeking for the

relief of declaration of their title. If once the permission is granted to the respondents for filing a fresh suit, then the decree of dismissal of the suits

will stand set aside. By virtue of the decree the petitioner-defendant has got a vested right since the finding of the trial court is that the petitioner

herein is in physical possession, of the suit properties and the respondents are not in possession of the same. By virtue of the said finding the

petitioner''s possession is safeguarded and the respondents'' case that they are in possession and enjoyment is belied. Hence now the withdrawal is

sought for not on the basis of the suit being dismissed on a formal defect but the suits are already disposed of on merits. Hence, at this stage, it may

not be proper to permit the respondents to withdraw the suits with liberty to file a fresh suit on the same cause of action.

The learned Judge, to reach the above said conclusion, has also followed earlier decisions of this Court. As for the facts of the case, the

defendants'' rights have already been ascertained by the Trial Court and it is to be treated that they have got vested rights even though the appeal is

pending and hence in view of the above said view taken by this Court, the plaintiff is not entitled to get such leave from the Court.

The plea of the plaintiff is that they propose to file a suit for partition. In the present suit, they have sought exclusive title to the suit properties and

if a suit for partition is coming up, necessarily they have to admit joint interests of the defendants and both the pleadings are mutually contradictory

and destructive and on that ground also, no leave could be granted by this Court.

Order 23, Rule 3 of CPC reads as follows:

Compromise of suit:- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement

or compromise, [in writing and signed by the parties] or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-

matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance

therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same

as the subject-matter of the suit]:

In order to get the leave of the Court under Order 23, the plaintiff has to make out sufficient ground to institute a fresh suit. As afore mentioned,

the proposed plea is inconsistent which does not make out a sufficient ground. In view of this Court, insofar as Rule 5(2), Order 23, is concerned,

the plaintiffs cannot get permission without other plaintiffs on the array or in the absence of the other plaintiffs. Concededly, in this application some

of the plaintiffs and defendants are not parties.

For the reasons afore mentioned, this Court is left with no option except to reject the claim of the petitioners and this Court does not find any

legal infirmity or perversity in the order passed by the Court below which deserves to be confirmed and it is accordingly confirmed.

In the result, the Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.