Rakki and Others vs Samaiyan

Ramamurti, J.—This revision petition is against the order of the learned Subordinate Judge of Sivaganga in Appeal Suit No. 4 of 1961,

permitting the Plaintiff in the suit Original Suit No. 257 of 1959, to withdraw the suit with liberty to file a fresh suit on the same cause of action. The

order passed by the learned Subordinate Judge is clearly wrong arid has to be set aside as totally without jurisdiction. A perusal of the order

shows that the learned Subordinate Judge has not applied his mind to the provisions of Order XXIII, Rule 1, Code of Civil Procedure, and has

passed the order in question in a mechanical fashion. There can be no doubt about it that this order is liable to be set aside u/s 115, Code of Civil

Procedure, as being without jurisdiction, besides being vitiated by material irregularity.

The Plaintiff filed the said suit on the file of the District Munsif, Manamadurai, for declaration of his sole mirasi right called Alavugaran Mirasi

right, and for a permanent injunction restraining the Defendants (Petitioners herein) from interfering with his right. His case was that he alone had

the exclusive right of measuring the produce in certain villages and of enjoying the remuneration or income derived from such services. The

Defendants denied the claim put forward by the Plaintiff and also raised the plea of nonjoinder of the other sharers and proprietors of the villages.

The learned District Munisf framed eight issues, of which five issues related to the merits of the rival contentions of the parties and issue No. 6

related to the objection %f non-joinder. The learned District Munsif, on a consideration of the oral and documentary evidence, had no hesitation in

negativing the claim of the Plaintiff on the merits. He held that the Plaintiff had not made out the ''right set up by him. On the issue of non-joinder, he

held that the suit was bound to fail for that reason also. The aggrieved Plaintiff preferred an appeal, and during the pendency of the appeal, he filed

an application, Inter-locutary Application No. 197 of 1961 for permission to withdraw the suit. The Plaintiff alleged that, even though his claim to

the sole right, of mirasi was dismissed on the merits, he may be entitled to certain right as a sharer and that he must be given liberty to file a fresh

suit to agitate that right. From what has been mentioned above, it is obvious that Order XXIII Rule 1, CPC cannot have any application to the

instant case.

In considering whether the Plaintiff should be given permission to withdraw the suit with liberty to file a fresh suit, it is necessary to bear in mind

the note of warning given by the Privy Council in the leading decision in Watson v. The Collector of Rajshahye (1869) 13 M.I.A. 160, 170. There

the Privy Council observed as follows:

There is a proceeding in those Courts (Courts in India) called a non-suit, which operates as a dismissal of the suit without barring the right of the

party to litigate the matter in a fresh suit, but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit;

to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an

erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but their Lord ships are aware of no

case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue,

liberty has been given to him to bring a second suit except in the particular instance that is now before them.

It is settled law and beyond question that, if the Plaintiff�s suit fails on the merits after a detailed adjudication by the Court, the Plaintiff cannot get

over the effect of that adjudication, by withdrawing the suit with liberty to file a fresh suit. It is sufficient to refer to two decisions of this Court in

Sivagaminatha Pillai v. Venkitaswami Naicker AIR 1949 Mad. 295 and Venkata v. Nimmakayala AIR 1949 Mad. 441. There is some difference

of opinion as to whether other sufficient grounds mentioned in Order XXIII, Rule 1, Sub-rule (2)(6) should be analogous to some formal defect

mentioned in Order XXIII, Rule 1, Sub-rule (2)(a) (vide Mulla''s Code of Civil Procedure, twelfth edition page 971 for a discussion of the views

of various Courts). The trend of the later decisions of the Madras High Court is undoubtedly to the effect that other sufficient grounds should be

analogous to the grounds in Order XXIII, Rule 1, Sub-rule (2)(a). Even giving a wide interpretation to Sub-rule (2)(6), I am satisfied that leave

ought not to have been granted in the instant case. It is a case in which the Plaintiff has completely failed on the merits, and there is no justification

for permitting him to agitate the same questions over again. Assuming that in the trial Court he agitated his sole right and that in the proposed suit he

desired a right as a co-sharer alone with others, it is a matter for the appellate Court to consider in the suit as framed whether relief can be granted

to the Plaintiff as a co-sharer. Surely, that is not a ground for permitting him to file a fresh suit on the same cause of action. In this connection,

reference may be made to the judgment of the Privy Council in Fateh Singh v. Jagannath Bakhsh Singh ILR (1924) All. 158 (P.C.), in which a

party, who filed a suit claiming sole title and possession of properties, was allowed to withdraw the suit with permission to file a fresh suit claiming

share in the property, after the Plaintiff had failed on the merits in the earlier litigation. When the second suit was filed, the Privy Council held that it

was barred by res judicata, holding that the permission granted to the Plaintiff to file a fresh suit was clearly in contravention of the provisions of

Order XXIII, Rule 1 , CPC and that such a permission would not affect the operation of Section 11, Code of Civil Procedure.

Learned Counsel for the Respondent, relying upon Kamayya v. Papayya ILR (1916) Mad. 259, (F.B.) urged that, if the lower appellate Court

had granted permission to the Plaintiff to withdraw the suit with liberty to file a fresh suit even contrary to the provisions of Order XXIII, Rule 1,

this Court should not interfere u/s 115, Code of Civil Procedure. The principle of that decision has no application to the instant case. That was a

case in which relying upon the permission granted under Order XXIII, Rule 1, the party filed a fresh suit and in the later suit the objection was

raised that the permission granted in the earlier suit was without jurisdiction. But the High Court took the view that that question could not be

considered in the second suit. But, as observed earlier the decision of the Privy Council in Fateh Singh v. Jagannath Bakhsh Singh ILR (1924) All.

158 (P.C.) is authority for the position that, if permission is granted contrary to the provisions of Order XXIII, Rule 1, the validity of the permission

can be questioned even in the subsequent litigation, so as to invoke Section 11, Code of Civil Procedure. Decisions of this Court and other High

Courts have uniformly taken the view that this Court will have jurisdiction to interfere u/s 115, where the order passed by the lower appellate

Court is clearly without jurisdiction and vitiated by patent irregularity.

The revision petition is, therefore, allowed and the order passed by the learned Subordinate Judge, Sivaganga, set aside. The appeal will be

restored to his file'' and he is directed to dispose of the same as expeditiously as possible at the latest by 31st January 1965. There will be no costs

in the civil revision petition.