Smt. G. Manjula vs Vangala Mallaiah and Others

G. Rohini, J.—The Revision Petitioner is the Plaintiff in O.S. No. 1537 of 2001 on the file of the Court of the II-Addl. Junior Civil Judge, Rangareddy District. The suit was initially filed against the Respondents 1 and 2 herein seeking declaration of title in respect of the plaint schedule property and recovery of possession.

The Respondents 3 to 5 herein were subsequently brought on record as the Defendants 3 to 5 by order dated 12.10.2006 as the legal representatives of the deceased Defendant No. 1 Similarly, the Respondent No. 6 herein /Defendant No. 6 was impleaded to the suit by order dated 30.09.2010 in I.A. No. 1666 of 2009.

While the suit was coming up for arguments, the revision Petitioner/Plaintiff filed I.A. No. 428 of 2010 under Order 23 Rule 1 of CPC seeking permission to withdraw the suit with liberty to file a fresh suit against the legal heirs of the Defendant No. 1. The said application was opposed by the Respondents/Defendants and the Court below after hearing both parties dismissed the same by order dated 29.04.2011. Aggrieved by the said order, the present Civil Revision Petition is filed by the Plaintiff.

I have heard the learned Counsel for the Petitioner and perused the material available on record.

In the affidavit filed in support of I.A. No. 428 of 2011, it was stated that though the Defendant No. 1 died prior to filing of the suit, under a bona fide mistake the suit was instituted against the dead person and therefore it is necessary to institute a fresh suit against the legal heirs of the deceased 1st Defendant for the relief of declaration of title and recovery of possession. It was also stated that in fact the legal notice sent to the Defendant No. 1 prior to institution of the suit was returned with a postal endorsement ''addressee died'', however they were under a bona fide impression that the said notice was returned unserved and that she came to know about the death of the Defendant No. 1 only when the suit summons were returned with an endorsement that the Defendant No. 1 died.

The Court below while observing that the petition, which was filed at the fag end of the proceedings, was not bona fide dismissed the application.

The learned Counsel for the Petitioner vehemently contended that since the Plaintiff wanted to withdraw her own suit, no prejudice would be caused to the rights of the Defendants and therefore the Court below committed a grave error in dismissing the application. While relying upon a decision of this Court in Pillakathuku Subbarathnam and Another Vs. Executive Officer, Polathala Malleswaraswamy Temple and Others, the learned Counsel also contended that the permission for withdrawing the suit with liberty to file a fresh suit shall be considered by the Courts liberally.

Order 23 Rule 1 of CPC which provides for withdrawal of suit, to the extent it is necessary for the present case reads as under:

Withdrawal of suit or abandonment of part of claim

(1) At any time after the institution of suit, the Plaintiff may as against all or any of the Defendants abandon his suit or abandon a part of his claim:

PROVIDED that where the Plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 4 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.

(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(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.

(4) Where the Plaintiff,--

(a) abandons any suit or part of claim under Sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorize the court to permit one of several Plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other Plaintiffs.

A reading of Rule 1 (3) of Order 23 makes it clear that satisfaction of the Court that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the Plaintiff to institute a fresh suit is mandatory for grant of permission to institute a fresh suit on the same cause of action.

In the present case, the Plaintiff/revision Petitioner sought permission of the Court for withdrawal of suit with liberty to file a fresh suit on the ground that the suit was filed initially against a dead person and therefore she was advised to file a fresh suit against the legal heirs of the deceased Defendant No. 1.

Admittedly notice sent to the Defendant No. 1 prior to institution of the suit was returned unserved with an endorsement ''the addressee died''. The said returned cover was produced in evidence by the Plaintiff herself as Ex.A-6. It is also relevant to note that the suit summons sent to the Defendant No. 1 were returned with an endorsement ''1st Defendant died'' and thus the Defendants 3 to 5 were brought on record as legal representatives of the deceased 1st Defendant. Thereafter the entire trial was over and even the arguments on behalf of the Plaintiff were completed. At that stage, the Plaintiff sought permission to withdraw the suit stating the suit if proceeded on the same pleading may result in dismissal and therefore she was advised to institute a fresh suit against the legal heirs of the deceased Defendant No. 1, i.e., Defendants 3 to 6.

Having regard to the admitted fact that the legal representatives of the deceased Defendant No. 1 were brought on record long back as Defendants 3 to 6 and thereafter they filed a written statement and have been contesting the suit, even assuming that the suit which was initially filed against a dead person suffered from any defect, in my considered opinion the same does not amount to a formal defect on account of which the suit must fail. Since the notice sent to the Defendant No. 1 prior to the institution of the suit itself was returned unserved -with an endorsement ''addressee died'', the failure of the Plaintiff to make a proper claim impleading the necessary parties cannot be termed as a formal defect.

As expressed above, for granting leave under Rule 3 (1) of Order 23, the Court must satisfy itself as to existence of the conditions specified therein. Since the Plaintiff failed to make out any case to show that the defect pleaded by her is a formal defect within the meaning of Rule 1 (3) (a) of Order 23 nor any other sufficient grounds could be shown for permitting the Plaintiff to withdraw the suit with leave, the Court below cannot be held to have committed any error in declining to grant the permission for withdrawal of the suit with liberty to institute a fresh suit on the same cause of action.

The Court below was also justified in observing that there were no bona fides in the petition having regard to the fact that the suit was conducted for about 9 years and even the arguments on behalf of the Plaintiff were completed.. For the aforesaid reasons, the order under Revision cannot be held to have suffered from any error of fact or law apparent on the face of the record. The discretion exercised by the Court below on application of mind to the facts and circumstances warrants no interference by this Court.

Accordingly, the Civil Revision Petition is dismissed. No costs.