Prabhavathi vs Srinivasan S/o. Padamanabhan

A. Badharudeen, J

Revision petitioners herein are the plaintiffs in O.S.No.510/2007 pending before the Additional Munsiff Court, Cherthala. Defendants 1 to 5 therein are the respondents herein. Plaintiffs filed I.A.699/2012 in the above suit under Order 23 Rule 1(3) of CPC to withdraw the suit with liberty to file a fresh one. As per order dated 23.09.2014, the learned Munsiff dismissed the application and the above order is under challenge before this Court by way of revision.

Heard both sides and perused the materials available.

Going by the order impugned it appears that the application I.A.No.699/2012 was moved contending that the description of the devolution of the title of the petitioners/plaintiffs was erroneously pleaded in the suit and if the present suit so continued, the plaintiffs would be deprived of their statutory entitlement. The learned Munsiff considered 2 grounds envisaged under Order 23 Rule 1(3) of CPC and negatived the contentions. According to the learned Munsiff, the expression formal defect connotes defects of various kinds not affecting the merits of the case and such a defect is in form and procedure and not a defect in substance or merits. Further the Munsiff held that the other sufficient ground is interpreted by various courts and the said ground must be in the nature of a technical defect because the principle of ejusdem generis is applicable.

The learned counsel for the petitioners submitted that the petitioners to be permitted to withdraw the suit with liberty to file a fresh suit so as to adjudicate their grievance.

Whereas the learned counsel for the respondents zealously opposed grant of relief sought for in I.A.No.699/2012. It is submitted by the learned counsel for the respondents that in an earlier occasion also the petitioner filed petition under Section 151 CPC to withdraw the suit with liberty to file a fresh suit on the same cause of action as I.A.No.593/2012. It was thereafter, the present application seeking the same relief was filed. According to the learned counsel for the respondents either of the petitions lack merits and therefore the learned Munsiff rightly dismissed the same.

Annexure A1 is the copy of order in I.A.No.593/12 filed by the petitioners/plaintiffs to withdraw the suit. The learned Munsiff dismissed the petititon as per order dated 15.2.2014 on the finding that there is nothing in the petition to show the formal defect in the suit. Instead, the plaintiffs put up a case in that petition to the effect that some legal advice was given to file a new suit for declaring the right over the plaint schedule property.

To move further, it is relevant to note Order 23 Rule (1) (3) of C.P.C as under :

"R.1. Withdrawal of suit or abandonment of part of claim:-- (1) xxxx xxxx xxxx

(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."

Going by the provisions extracted above, withdrawal of the suit can be permitted on 2 grounds: (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.

In the order impugned, the learned Munsiff observed that sufficient ground envisaged under Order 23 Rule (1)(3) has to be interpreted on the principle of ejusdem generis. It appears that the above finding is wrong. In this connection it is relevant to refer an earlier decision of this Court. It is not in dispute that withdrawal of the suit is permitted with liberty to file a fresh suit in order to prevent a litigant from absuing the process of court by instituting suit again and again on the same cause of action without any good reason. Decision reported in [AIR 1987 SC 88], Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior & Ors. is given emphasis in this regard. Coming to the formal defect envisaged under Order 23 Rule (1)(3)(a), the formal defect means a defect of form prescribed by the rules of procedure, viz. want of notice under Section 80 of the Code of Civil Procedure, valuation of suit, insufficient court fee, confusion regarding identification of subject matter of the suit, failure to disclose cause of action, misjoinder of parties, mistake in not seeking proper relief, defect in prior clause, absence of territorial jurisdiction, etc. However, reading the word `sufficient grounds' mentioned in Order 23 sub rule 1(3) of CPC, the same cannot be read in ejusdem generis with the expression `formal defect' occurring in clause (a). The decision reported in [1981 KLT 438], Prabhavathi v. Kunhathabi Umma, is on this point. It is not in dispute that giving permission to withdraw a suit with liberty to file a fresh one during trial stage and appellate stage is governed by different parameters. To be precise, parameters to allow withdrawal of a suit at the appellate stage is more rigid than one during the trial stage.

However, the prime question centers on the point that whether the plaintiffs averred and established necessary ingredients to substantiate their claim for withdrawal of suit with liberty to file a fresh suit. As I have already pointed out, initially I.A.No.593/2012 was filed and sought the liberty to withdraw the suit with liberty to file a fresh suit on asserting that legal advice obtained to institute a new suit. The second application for the same relief was moved on the ground that the devolution of the title of the petitioners/plaintiffs was erroneously pleaded in the suit, and the suit if continued as such, the same would deprive their statutory entitlement. In fact, if any, erroneous description occurred while drafting the plaint, remedy under Order 6 Rule 17 to amend the plaint to be availed and the same is not a reason to allow withdrawal of a suit. No doubt, in order to withdraw the suit, the conditions enumerated under Order 23 Rule (1) 3(a) or (b) must be satisfied. Thus it has to be held that the plaintiff miserably failed to establish any substantial grounds envisaged under Order 23 Rule (1)(3)(a) or (b) to withdraw the suit and therefore the learned Munsiff is justified in dismissing the same. Therefore, I am not inclined to interfere with the impugned order for any reason by exercising the power of revision available to this Court. Therefore, this revision petition must fail.

In view of the matter, the Revision Petiton stands dismissed. The order impugned is upheld.