Soma Naicker and Others vs Veluchamy and Others

Rengasamy, J.—This revision is filed against the order of the learned Additional Subordinate Judge, Dindigul, in I.A. No. 358 of 1994 in

A.S. No. 275 of 1993, refusing permission to withdraw the suit under 0.23, Rule 1 of Civil Procedure Code.

The revision petitioners filed a suit for injunction in respect of a cart-track on the basis that they are the co-owners of the cart-track. The trial

Court dismissed the suit. Therefore, the revision petitioners have filed an appeal before the Additional Subordinate Judge, Dindigul and during the

pendency of this appeal, they filed I.A. No. 358 of 1994 to withdraw the suit with liberty to file fresh suit. The learned Subordinate Judge

dismissed the application holding that there is no formal defect in the pleading nor there is any acceptable reason to give liberty to withdraw the suit

for filing a fresh suit on the same cause of action.

The learned Counsel appearing for the revision petitioners relying upon three decisions, namely, Beniram and Others Vs. Gaind and Others, ,

Kamayya v. Papayya AIR 1918 Mad. 1287 and Homeo Dr. T.K. Prabhawati Vs. C.P. Kunhathabi Umma and Others, would contend that the

plaintiff''s have right to withdraw the suit when especially they have given the reason in the application, namely, that the mistake was committed at

the time of the drafting of the plaint and therefore, the plaintiff''s have to be given liberty to put forward their case of easement by filing a fresh suit

on the same cause of action. In the first decision cited by the learned Counsel, the Supreme Court has observed that the non-pleading of a point

may be a ground for permission to withdraw the suit. In the decision second cited, the grounds under which the withdrawal can be permitted has

not been fully considered, but the scope of the decision in that case was that when the court has given permission to withdraw the suit, what is the

effect of the decree passed by the trial court. Therefore the question whether permission can be granted for withdrawing the suit under the given

circumstances depends according to the nature of the case. In the third case, the Kerala High Court has observed that when the mistake was

committed by the counsel who drafted the plaint, that will be a ground for permission to withdraw the suit. In this case as mentioned above, the suit

was based on the co-ownership in the property itself. The learned Counsel would argue that it was a mistake in the drafting of the plaint and

therefore for the mistake on the part of the counsel the party should not suffer and they may be permitted to plead that they have got right of

easement by filing a fresh suit on the very same cause of action. If the counsel had committed the mistake at the time of drafting the plaint, claiming

right on the basis of the title to the property itself, when the suit was taken up for trial, the plaintiff''s could have explained their right to the property

as persons entitled to easement right but not to the title itself. But in support of their pleadings they have let in evidence as though they are the co-

owners of the property. Therefore, all along in the trial court the pleadings and the evidence was to the effect that the plaintiff''s as owners of the

property are entitled to the pathway. But as the suit was dismissed, now in the lower appellate court they want to alter their basis of the claim to

one of easement. When they were all along fighting their claim on the basis of the co-ownership, I feel that it cannot be treated as a mistake to

permit the petitioners to withdraw the suit, and also permit them to put forward an alternative plea for easement. If the plaintiff''s are entitled to

easement right, they ought to have initiated the suit for easement right and they ought not to have let in evidence before the trial court for their right

as co-owners, and as they have not chosen to elect the nature of their claim before the trial court. Now they cannot be permitted to withdraw the

suit for filing a fresh suit on the very same cause of action. Therefore as I find no error in the order of the court below, the civil revision petition is

dismissed in the admission stage.