Murugesan vs Alamelu Ammal and Others

S. Manikumar, J.—Civil Revision Petition is filed against the order dismissing the petition for withdrawal of the suit.

The petitioner/plaintiff filed a suit against the respondents/defendants for declaration of his title and for permanent injunction with respect to the

suit properties in O.S. No. 623 of 1999. The suit was partly decreed and partly dismissed. Aggrieved against the judgment and decree in O.S.

No. 623 of 1999, the petitioner/plaintiff preferred an Appeal. Pending appeal, the petitioner/plaintiff filed an application to withdraw the suit with

liberty to file a fresh suit with the same cause of action. The reason assigned in the affidavit filed in support of the petition was that there is flaw in

the description of the properties in the original suit as well as in the appeal and that even if the appeal is decided in favour of the petitioner/plaintiff,

it will not be fruitful to him. The decree of the Lower Court with the existing description of property will not yield any solution to the dispute. The

flaw caused is out of divine reason and beyond his control. Therefore, he has sought for leave of the Court to withdraw the suit with liberty to file a

fresh suit with the same cause of action.

The respondents/defendants resisted the said application on the ground that the application is not maintainable and that having failed in the

Lower Court, it is not open to him to deprive the benefits of the judgment and findings rendered in the suit.

The Lower Court relying on the judgment reported in K.S. Bhoopathy and Others Vs. Kokila and Others, , declined to grant permission to the

petitioner herein to withdraw the suit with liberty to file a fresh suit with the same cause of action. Aggrieved against the said decision, the present

Revision Petition is filed.

Mr. V. Bhiman, learned Counsel for the petitioner/plaintiff submitted that the mistake crept in the description of the property in the suit is due to

the above reasons and that it is always open to the petitioner to withdraw the suit. He further submitted that the Lower Court failed to appreciate

that the abandonment of the suit and filing of a fresh suit with the same cause of action will be hit by the principles of resjudicata and that there was

sufficient cause for withdrawing the suit.

(i) Placing reliance on Thangapandian and another Vs. Sri Muthumariamman Idol, , learned Counsel for the petitioner submitted that if the defect is

only formal, like incomplete description regarding boundaries and measurements of the suit property, for a lapse committed at some point of time

by the person, who instituted the suit should not be allowed to be perpetuated to the detriment of the Suitor.

In the above case, Sri Muthumariamman Idol, represented by the Executive Officer, instituted the suit for recovery of possession of the suit

property based on title. The written statement was filed by the defendant contending that the plaintiff-temple had no title to the suit property. At this

stage, it was noticed that the description of the property given in the plaint was not complete either in respect of the boundaries or in respect of the

measurements. On the facts of the above case, the Court granted the relief, since it was open to the defendant therein to raise all objections on

merits, while defending the suit. No evidence was let in and it was not even taken up for trial.

Whereas in the present case, there has been full fledged trial, the rights of the parties have been decided in respect of the suit claim. The

petitioner/plaintiff''s title has been declared only insofar as Patta No. 531, S.No. 41/2A2 to an extent of 0.86.5 hectares are concerned and that

respondents/defendants are restrained by means of an injunction. The respondents/defendants were found to be in possession and enjoyment of

0.32 cents in S. No. 41/2A1 and that the petitioner/plaintiff''s claim for declaration of this portion has been negatived. The judgment cannot be

applied to the present case, as it was in the pre-trial stage, where there was no determination of rights of the parties.

(ii) Learned Counsel for the petitioner/plaintiff submitted that a Court of appeal has power in a proper case to grant permission to the petitioner to

withdraw the suit with liberty to file a fresh suit and that it would remove the bar of ""resjudicata"" which would otherwise apply if a fresh suit on the

same cause of action is brought.

He further submitted that there are sufficient grounds for allowing the petitioner/plaintiff to withdraw the suit. In support of his contention, learned

Counsel cited a decision reported in Duraikannu and three Ors. v. Malayammal 2003 (4) L.W.453. This Court held that the expression ""sufficient

grounds"" must be read ""ejusdem generis"" with Clause (a) and sufficient ground must be similar or alike to the clause mentioned in Order 23 Rule

1(3) (a). This Court in paragraphs 6, 7, 8 and 9 held as follows:

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 circumstances 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.

Learned Counsel for the petitioner further submitted that the flaw in the description is a formal defect falling under Sub Rule (3) and that liberty may

be given enabling to avoid the bar in Order 11, Rule 2.

(iii) The judgment cited by the learned Counsel for the petitioner in Kokila and another Vs. K.S. Bhoopathy and five others, has been subsequently

reversed by the Supreme Court in K.S. Bhoopathy and Others Vs. Kokila and Others, , in which the Apex Court has considered the law as to

withdrawal of suits as enacted in the present Rule may be generally stated in two parts, as hereunder:

(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the Court; in that case he will be

precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to

bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and

(b) a plaintiff may, in the circumstances mentioned in Sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on

the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order 11, Rule 2 and Section 11 CPC.

In the case decided by the Supreme Court, the suit was filed claiming exclusive right of the user of the pathway and for certain reliefs. The suit was

decreed by the Trial Court, but the first Appellate Court modified the decree after holding that the plaintiff had no exclusive right over the pathway

and that it is a common pathway. The plaintiff preferred a Second Appeal and even before the appeal was admitted, he sought leave of the court

to withdraw the suit with liberty to file a fresh suit for declaration of title regarding pathway. The Apex Court in paragraph 17 has held as follows:

The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of

the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed,

permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the court to feel satisfied

that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a

matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants. In case such

permission is granted at the appellate or second appellate stage prejudice to the defendant is writ at large as he loses the benefit of the decision in

his favour in the lower court.

Learned Counsel for respondents/defendants submitted that the flaw in the description of the properties has not been clearly spelt out in the

affidavit and it is vague. It is also not stated as to how the respondents/defendants would be prejudiced by the wrong description. Permitting the

petitioner/plaintiff to withdraw the suit at the appellate stage with liberty to file a fresh suit with the same cause of action would certainly affect the

interest of the respondents/defendants, whereby the decision rendered in the suit and the findings thereon will be wiped out. Inviting my attention to

paragraph 17 of the judgment reported in K.S. Bhoopathy and Others Vs. Kokila and Others, , the counsel submitted that such a course is not

permissible in law.

In a judgment reported in The Executive Officer, Arthanareswarar Temple Vs. R. Sathyamoorthy and Others, , the Honourable Supreme Court

has held as follows:

While granting permission to withdraw, the Court was not deciding any question and no advantage would be gained by the revision petitioners by

withdrawal of the proceedings. The Executive Officer and the Commissioner who were Respondents 14 and 15 in the CRP were not placed in any

disadvantageous position. If there was any finding in their favour which might get nullified by the withdrawal, in that event, it could be said that they

would be prejudiced by the withdrawal but that was not the position. Here, the District Judge had proceeded on the basis that the property was a

private trust. There was no finding by the District Court which was in favour of the respondents or the Executive Officer which would get nullified

and hence they could not object to the withdrawal of the original petition.

Court can permit withdrawal of a suit only if sufficient ground is shown. The petitioner/plaintiff must ask for leave and make out a case within

Clause (a) or (b). The principle under Order 23 Rule 1 (3) CPC is founded on a public policy to prevent institution of the suit again and again on

the same cause of action. When applying for withdrawal, a general statement that there are formal defects or failure to furnish the description in the

suit properties is not sufficient. The petitioner/plaintiff must specifically state the defect and as to how he is prejudiced.

The petitioner/plaintiff has no right to withdraw the suit where the rights of the parties with regard to any of the matters in controversy in the suit

has been finally decided. The suit has been dismissed by the Trial Court and certain rights have been vested in the party in whose favour a decision

is made. It conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit and therefore, at the

stage of appeal, though it may be a continuation of proceedings, the petitioner/plaintiff has no absolute right to withdraw the suit. If an appeal was

preferred by an unsuccessful plaintiff against the judgment dismissing the suit and if the petitioner/appellant/plaintiff wanted to withdraw not only the

appeal, but also the suit unconditionally, then such permission insofar as the withdrawal of the suit is concerned can be granted, if there is no

question of any adjudication on merits, in favour of the respondents/defendants by the Trial Court being nullified by such withdrawal. On the other

hand, if any such findings by the Trial Court in favour of the defendants is nullified, then such permission for withdrawal of the suit should not be

granted.

If a suit has been dismissed in part, thereby a judgment is rendered in respect of a relief, the respondents/defendants should not be deprived of the

decision and the findings rendered in the Lower Court. The mere general statement that there is a formal defect in the description of the suit

schedule property is not sufficient to attract the said word.

The decision reported in Duraikannu and Ors. v. Malayammal 2003 (4) L.W. 453 relied on by the counsel for the petitioner supports the case

of the respondent, in that there is no obligation on the part of the Court to assign any reason when permission is refused.

The order of the Lower Court is in conformity with the principles laid down by the Supreme Court in respect of applications for withdrawal of

suit. There are no grounds to interfere with the order of the Lower Court. In the result, the Civil Revision Petition fails and the same is dismissed.

No costs. Consequently, connected C.M.P. No. 13716 of 2005 is closed.