Velusamy and Rayappan vs Chenniappan and Others

M. Venugopal, J.—The Civil Revision Petitioner/Respondents/Defendants have filed this Civil Revision Petition as against the order dated

06.03.2008 in I.A. No. 225 of 2007 in O.S. No. 80 of 2000 passed by the Learned District Munsif cum Judicial Magistrate, Palladam,

Coimbatore District.

The Trial Court, while passing orders in I.A. No. 225 of 2007 on 06.03.2008, has among other things observed that ''...The

Respondents/Petitioners/Plaintiffs are showing sufficient grounds for allowing the application under Order 23 Rule 1 of CPC and they are having

liberty to withdraw the suit, since there are sufficient defects in the plaint, committed while framing the suit etc. and resultantly, allowed the

application without costs.''

According to the Learned Counsel for the Revision Petitioners/Respondents/Defendants, the Trial Court has failed to see that the

Respondents/Petitioners/Plaintiffs who attempted to change the entire character of the suit, cause of action of the suit and sought to seek reliefs

bared by limitation having failed in such an attempt upto the Hon''ble Supreme Court, cannot achieve by filing an application for withdrawal of the

suit with leave to file a fresh suit on the same cause of action.

It is the further contention of the Learned Counsel for the Revision Petitioners that mere statement by the Plaintiffs that there is a formal defect in

the frame and form of suit is not enough to allow an application under Order 23 Rule 1 of CPC and that the Trial Court ought to have seen that the

requirement of Order 23 Rule 1(3) must be satisfied by the plaintiffs and in fact, the Plaintiffs made an attempt earlier to amend the plaint which

was disallowed by all the Courts and to get over the same, the Respondents/Petitioners/Plaintiffs have failed I.A. No. 225 of 2007 before the Trial

Court under Order 23 Rule 1 of CPC and in any event, the Trial Court has not appreciated of the fact that nowhere in the affidavit in I.A. No. 225

of 2007 the Respondents/Petitioners/Plaintiffs are explained what are the formal defects that are sort to be rectified by way of filing a fresh suit and

therefore, prays for allowing the Civil Revision Petition to promote substantial cause of justice.

In the affidavit of the 3rd Respondent/3rd Petitioner/3rd Plaintiff in I.A. No. 225 of 2007 in O.S. No. 80 of 2000, it is, among other things,

mentioned that the other Respondents/Petitioners/Plaintiffs are his co-sharers and that he has filed the suit O.S. No. 80 of 2000 through previous

counsel for the relief of declaration that plaint documents No. 4 and 5 are not binding on him and other Respondents/Petitioners, null and void etc.

and that the Revision Petitioners/Respondents were entitled to half share each in Ac.2.81 in S.F. No. 22/1A, Ac.1.00 in S.F. No. 24/1, the

building in S.F. No. 22/1A building and well in Natham S.F. No. 169B with motor pumpset and Service connection and as per Plaint Document

No. 1 viz., sale deed dated 25.7.1975 the 1st Revision Petitioner/1st Respondent sold his half share to the 1st Respondent/1st Petitioner and as

per Plaint Document No. 2 viz., sale deed dated 20.12.1976, the 2nd Revision Petitioner/2nd Respondent sold his half share to his father

Kuttiappan and that the Revision Petitioners'' denial in the written statement is only evasive and after execution of these two sale deeds the Revision

Petitioners/Respondents have no right, title, possession or interest over the said properties and that the 1st Revision Petitioner/1st Respondent

executed a lease deed on 3.7.1979 in favour of the 2nd Revision Petitioner/2nd Respondent as if he still owned a half share in the properties.

Further, the 1st Revision Petitioner/1st Respondent on 17.10.1997 executed a General Power of Attorney empowering the 2nd Revision

Petitioner/2nd Respondent to deal with his purported half share in the properties and these documents are void one.

The case of the Respondents/Petitioners/Plaintiffs is that they have been advised to include a specific prayer for declaration of title and

mandatory injunction to remove the motor and service connection installed in the well subsequent to the filing of the suit and the description of

plaint schedule properties are found in the Plaint Document Nos. 1 and 2 in two undivided half shares has also given rise to some confusions and

that his previous counsel, who drafted the plaint, has omitted certain important facts in the plaint and therefore, to avoid such confusions and bereft

of details, they have been advised to file I.A. No. 69 of 2005 to amend the plaint as per Order 6 Rule 16 & 17 of Civil Procedure Code.

As a matter of fact, the said I.A. No. 69 of 2005 was dismissed by this Court on 28.3.2005. Thereupon a Civil Revision Petition (PD). No.

977 of 2005 was filed and the same was dismissed by this Court on 13.3.2006. The SLP in C.C. No. 8882 of 2006 before the Hon''ble Supreme

Court was also dismissed on 27.11.2006.

The main stand of the Respondents/Petitioners/Plaintiffs is that without sufficient pleadings about plaint documents, correct description of

properties and without a prayer for Mandatory Injunction in respect of subsequent developments in the plaint, they are unable to proceed with the

Trial and therefore, they prayed for permission of the Court to withdraw the Suit with a liberty to file a fresh suit on the same cause of action.

The Revision Petitioners/Respondents/Defendants in their counter have stated among other things that the Respondents/Petitioners/Plaintiffs

have not stated in their affidavit in I.A. No. 225 of 2007 in what way the recitals in sale deeds dated 25.2.1974 and 20.12.1976 are giving rise to

confusion and indeed, the Electricity Service Connection, the motor and pumpset have nothing to do with the issue between the parties and they

will not decide the title of the Respondents/Petitioners/Plaintiffs and there is no necessity to include a specific prayer for declaration of title and a

mandatory injunction for removing the motor and service connection and the Respondents/Petitioners/Plaintiffs will have to file a separate suit for

removing the same and unless the Respondents/Petitioners/Plaintiffs'' title are decided, the documents viz., Lease Deed and Power of Attorney

cannot be declared as null and void etc.

The plea of the Revision Petitioners/Respondents/Defendants is that I.A. No. 69 of 2005 an Amendment Application has been dismissed,

since it has been filed much after the period of limitation etc. and the Respondents/Petitioners/Plaintiffs have not failed before all the forums up to

the level of Hon''ble Supreme Court, now it is not open to them to project an I.A. No. 225 of 2007 seeking permission to withdraw the Suit and

to file a fresh Suit on the same cause of action and the Respondents/Petitioners/Plaintiffs have not made out a case as per clause (1) and (b) of

Rule 1 of Order 23 of CPC and therefore, the I.A. No. 225 of 2007 has to be dismissed in limini.

At this stage, the Learned Counsel for the Revision Petitioners/Respondents/Defendants cites the decision of this Court in Duraikannu and 3

Ors. v. Malayammal 2003 4 L.W. 453 at page 454 wherein it is held that ''No doubt, a Court of appeal has power in a proper case to grant

permission to withdraw a suit with liberty to file a fresh suit, however, such power should be used very cautiously by a Court of appeal. The

Plaintiff/appellant is not entitled, as a matter of right to withdraw his suit and he will not be permitted to do so if the effect of allowing him to

withdraw it would be to deprive the defendant of the benefit of the lower court''s adjudication in his favour.

In the aforesaid decision at page 454, it is also held that ''The failure of the plaintiff to prove his own case is no ground for allowing him to withdraw

his suit with liberty of suing again for the same subject matter.''

He also relies on the decision of this Court in C. Bagyalakshmi v. P. Irulappan and Anr. 2006 (5) CTC 74 wherein it is held that ''Permission

to withdraw Suit with liberty to file fresh Suit on same cause of action results in annulment of right vested in Defendant or even third party and

further that errors or mistakes, if any, in description of Survey Number or boundaries could be corrected by way of Petition to amend plaint and

such mistake cannot give right to withdrawal of Suit with liberty to file fresh Suit on same cause of action.''

Per contra, the Learned Counsel for the Respondents/Petitioners/Plaintiffs cites the decision in Sivakumar and 5 Ors. v. Lingappa Mudaliyar

and 2 Ors. 2008 (1) TLNJ 436 (Civil) wherein it is held that ''as the application to amend plaint for better appreciation was dismissed and the

application for withdrawal of the suit to file a fresh suit on the same cause of action is correct and maintainable.

It is not out of place for this Court to make a significant mention that in I.A. No. 225 of 2007 the Respondents/Petitioners/Plaintiffs have

specifically mentioned that since an Amendment Application I.A. No. 69 of 2005 was dismissed, they were not able to cure the formal defects in

the plaint and there are several formal defects in their plaint and sufficient grounds for allowing them to withdraw the suit with liberty to file fresh suit

on the same cause of action.

The term ''Formal Defect'' in ordinary parlance refers to defects of various kinds not affecting the merits of the case. As such, ''Formal Defect''

is a defect of form unrelated to the claim of plaintiff on merits as per decision Somaraju Chinnammi Vs. Samanthu Sivaji Ganesh and Another, .

The provision in Order 23 Rule 1 of CPC is an exception to the common law principle of non suit. On principle an application by the Plaintiffs

under Sub-rule (3) cannot be equated on a par with an application by them in exercise of the absolute liberty given to them under Sub-rule (1). As

a matter of fact, the grant of leave contemplated in Sub-rule (3) of Rule 1 is at the discretion of the Court. However, such a discretion must be

exercised by a Court of Law with care and circumspection, in the considered opinion of this Court. A Court of Law ought to apply its mind while

granting permission to withdraw the Suit with a liberty to file a fresh one. Importantly, permission under Sub-rule (3) can be accorded only if the

conditions specified therein are satisfied. A mere statement by the Plaintiffs that there are formal defects in the frame and form of suit are not

enough, as opined by this Court. Therefore, there must be an express finding by a Court of Law that the Suit would fail by reason, of some formal

defect or that there are other sufficient reasons for granting the leave to file a fresh suit as per decision Lallu Vs. The Board of Revenue, U.P.,

Allahabad and Others, .

To put it precisely, the application should be considered by a Court of Law in entirety i.e. in both the parts as to the withdrawal and liberty to

file a fresh Suit. If the Suit is withdrawn, and if no liberty has been granted, then a fresh Suit is certainly barred in the eye of law. In law, the bar in

respect of the earlier Suit is by means of Sub-rule (4) and not on the plea of res judicata.

As far as the present case is concerned, an Amendment Application I.A. No. 69 of 2005 filed under Order VI Rule 17 of CPC by the

Respondents/Petitioners/Plaintiffs was dismissed by the Trial Court on 28.3.2005. Also, C.R.P.PD. No. 977 of 2005 filed against the I.A. No. 69

of 2005 was also dismissed by this Court on 13.3.2006. The SLP in C.C. No. 8882 of 2006 was also dismissed by the Hon''ble Supreme Court

of India on 27.11.2006. When the Respondents/Petitioners/Plaintiffs have remained unsuccessful after the Amendment Application I.A. No. 69 of

2005 was dismissed by the Trial Court and also the Hon''ble Supreme Court had dismissed the SLP in C.C. No. 8882 of 2006 on 27.11.2006,

then it is not open to the Respondents/Petitioners/Plaintiffs are estopped from projecting the present I.A. No. 225 of 2007 under Order 23 Rule 1

of CPC praying permission of the Trial Court to withdraw the Suit and to file a fresh Suit on the same cause of action, as opined by this Court.

Though the Trial Court, while allowing the I.A. No. 225 of 2007, has inter alia opined that ''the Respondents/Petitioners/Plaintiffs have shown

sufficient grounds for allowing the application under Order 23 Rule 1 of CPC and they are having the liberty to withdraw the Suit and since there

are several defects in the plaint committed while framing the Suit etc., this Court is of the considered view that the

Respondents/Petitioners/Plaintiffs, after having failed in their earlier attempt in projecting I.A. No. 69 of 2005 and remained unsuccessful upto the

Hon''ble Supreme Court, cannot project the present I.A. No. 225 of 2007 as a camouflage to get an order in their favour, but mere statement by

the Plaintiffs or by the Court of Law that there are formal defects in the frame and form of suit are not enough and also the observations of the Trial

Court in para 21 of its order in I.A. No. 225 of 2007 dated 06.03.2008 to the effect that ''in these circumstances, for granting permission for

withdrawal of the suit with leave to file fresh suit by the plaintiffs in such matter will not prejudice the defendants'' are not sufficient compliance of

the ingredients of Order 23 Rule 1(3) of Civil Procedure Code.

In the present case on hand, the Trial Court in I.A. No. 225 of 2007 has not rendered a categorical finding that the Suit would fail by a reason,

of some formal defect etc. and even otherwise, it is quite evident that the Trial Court has not borne in mind of the fact that the

Respondents/Petitioners/Plaintiffs remained unsuccessful upto the level of Hon''ble Supreme Court when they projected Amendment Application

I.A. No. 69 of 2005. Since the order of the Trial Court in I.A. No. 225 of 2007 dated 06.03.2008 is not in accordance with the Order 23 Sub-

rule (3) of Rule 1 of Civil Procedure Code, this Court is per forced to interfere with the said order in Revision and accordingly, sets aside the order

passed by the Trial Court in I.A. No. 225 of 2007 and allows the Civil Revision Petition to prevent an aberration of justice.

In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. Consequently, the order passed by the Trial

Court in I.A. No. 225 of 2007 dated 06.03.2008 is set aside for the reasons assigned by this Court in this revision. Consequently, connected

miscellaneous petition is closed.