S. S. Manihandan vs Anantharaman

M. Duraiswamy, J.—Challenging the fair and final orders passed in I.A.Nos. 20 of 2012 and 585A of 2012 in O.S.No. 516 of 2010 on the file of the I Additional District Munsif Court, Tirunelveli, the plaintiff has filed the above Civil Revision Petitions.

Heard the learned Counsel for the petitioner.

The plaintiff filed the suit in O.S.No. 516 of 2010 for permanent injunction. The said suit is being contested by the defendant on various grounds. Before the trial Court, the parties let in oral and documentary evidences and the suit was reserved for judgment on 28.09.2011. Thereafter, the plaintiff filed an application to reopen and filed a memo stating that the parties want to settle the matter. The said petition was allowed by the trial Court on 13.09.2011 and the memo was closed on 03.01.2012 and the suit was also referred to the Mediation and Conciliation centre and also taken up in the Mega Lok Adalat twice. However, the matter was not settled. Thereafter, the suit was returned to the trial Court. In the meantime, the plaintiff filed an application in I.A.No. 20 of 2012 under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint on the basis of a rectification deed executed by the uncle of the plaintiff on 15.11.2011. It is pertinent to note that the said document was not marked in the interlocutory application.

The trial Court took into consideration that after the completion of the trial, the suit was reserved for judgment on 28.09.2011 and the proposed amendment was on the basis of the rectification deed executed by the plaintiff''s uncle on 15.11.2011 and thereafter came to the conclusion that the proposed amendment would alter the original cause of action. It is also pertinent to note that the proposed amendment sought for by the plaintiff is based on the rectification deed dated 15.11.2011, which is subsequent to the filing of the suit and also subsequent to the date of the trial Court posting the matter for judgment i.e., on 28.09.2011. Since the proposed amendment sought for by the plaintiff would alter the original cause of action, the trial Court has rightly dismissed the application. I do not find any error or irregularity in the order passed by the trial Court and the Civil Revision Petition is liable to be dismissed.

After the dismissal of the application in I.A.No. 20 of 2012, the plaintiff filed an application in I.A.No. 585A of 2012 under Order 23 Rule 1(3) of the Code of Civil Procedure seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The trial Court, while dismissing the application rightly held that the plaintiff has not stated a single word how the suit was suffers from formal defect and what is the formal defect and how the suit was filed on such formal defect and also why the plaintiff has not taken any steps earlier to prosecute the suit in a diligent manner. Just because the amendment petition was dismissed by the trial Court, it is not a ground to file an application under Order 23 Rule 1(3) of the Code of Civil Procedure seeking permission to withdraw the suit with liberty to file a fresh suit. The plaintiff failed to conduct the suit with proper care and diligent and after the witnesses failed to support his case, by filing the present application under Order 23 Rule 1(3) of the Code of Civil Procedure, the plaintiff is trying to obtain a liberty to commence the trial afresh in order to avoid the result from the suit. The plaintiff has not given any reason or explanation as to why he has omitted to correctly describe the property earlier and he has not even stated what is the defect in describing the schedule of the property.

As already stated, the trial Court had completed the trial and also heard the arguments of both sides and also reserved for judgment on 28. 09.2011. When the suit was posted for judgment, the plaintiff has come forward with these petitions at the fag-end of the suit. In these circumstances, the plaintiff has not made out any ground to grant permission to withdraw the suit with liberty to file a fresh suit. The trial Court has rightly dismissed the application. I do not find any error or irregularity in the order passed by the trial Court.

Accordingly, both the Civil Revision Petitions are devoid of merits and the same are dismissed. Consequently, the connected Miscellaneous Petitions are also dismissed. However, there shall be no order as to costs.