BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :27/11/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(NPD)(MD).No.1772 of 2008 and M.P.(MD).No.1 of 2008 1.Kalimuthu 2.Muruganantha Vadivel 3.Shanmuganandha Vadivel 4.Lakshmi Narayanan 5.Saraswathi ... Petitioners Vs. 1.Asha 2.Hariharan 3.Minor.Annapoorani ... Respondents Prayer Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 03.07.2008 passed in I.A.No.212 of 2008 in O.S.No.4 of 2008 on the file the Family Court, Madurai. !For Petitioners... Mr.R.Surianarayanan ^For Respondents... Mr.Lajapathyroy for Mr.M.Patturajan **** :ORDER
The petitioners are the defendants in O.S.No.4 of 2008 on the file of the
Family Court, Madurai. The suit is for partition and separate possession of the
plaintiffs 2/15 share in the suit properties, for rendition of accounts and
directions to the defendants 1 and 2 to provide separate residence to the
plaintiffs and to pay maintenance of Rs.10,000/- (Rupees Ten thousand only) to
the first plaintiff and Rs.5,000/- (Rupees five thousand only) each to the
second and third plaintiffs. Pending the trial of the suit, these
defendants/respondents filed Interlocutory Application in I.A. No.212 of 2008
under Order 7, Rule 11 (a) and (d) Section 151 CPC praying the Court to reject
the plaint filed by the plaintiffs.
2. In the affidavit, they have alleged that the suit is a vexatious
one, that the relief for Rendition of Accounts does not arise and so there is no
cause of action for the second prayer in the plaint, that the second defendant
is maintaining his family in the separate residence at Door No.225, Upstairs,
Church Road, Anna Nager, Madurai-20 by paying the house rent and providing all
facilities for the family. As far as the maintenance claim of the plaintiffs 1
and 2 is concerned, it is ridiculous and unlawful and second plaintiff is
earning through employment and with regard to the third plaintiff already
maintenance has been awarded and the order is still subsisting and the
petitioner No.2 is complying with the order and without preferring any
modification, the claim for maintenance for further occasion is infructuous. It
is stated that petitioners 1, 3 and 6 are not necessary parties to the suit.
3. In the counter filed by the respondents, it is alleged that the
second defendant is a man of unsound mind and he is also under care and custody
of the first defendant and from 23.12.2007 onwards he has been residing with his
father after deserting his family. The compromise entered into earlier suit is
only with regard to the sons and there is no whisper about the partition suit.
Partition is a separate issue and the same has to be decided only in the case
after examination of the concerned witnesses. There is no merits for allowing
the application. Hence, the petition is to be dismissed.
4. The learned Family Court Judge has dismissed the application on
merits under observation that what are all alleged by the petitioners can be
looked into only at the time of trial and a claim under Order 23, Rule 11, is
not maintainable at this stage. Earlier, the first respondent filed a suit on
behalf of her minor son and daughter in O.S. No.29 of 2005, on the file of the
Family Court, Madurai for partition of 2/15 share and separate possession. The
second petitioner is the husband of the first respondent. While the suit was
pending, the first petitioner made an endorsement to the effect that he is
prepared to pay a sum of Rs.8,000/- (Rupees Eight thousand only) per month to
his son’s family. The first petitioner is the father of the second petitioner.
The endorsement was made on 16.11.2005 and on the same date, this first
respondent also made an endorsement to the effect that she also agreed to live
with her husband without any problem and hence, the suit may not be pressed. In
view of the above said endorsements, the Court dismissed the suit as not pressed
on 16.11.2005 itself. It is the version of the respondents that as per the
above said endorsements, the first defendant did not pay the amount.
5. The learned counsel for the petitioners Mr.R.Surianarayanan, would
submit that inasmuch as the respondents herein have not obtained liberty while
not pressing the suit instituted earlier, they are legally barred from bringing
the present suit for partition, that the causes of action in both the suits are
the same and that taking this suit on file is not sustainable and hence, it has
to be rejected.
6. Conversely, the learned counsel for the respondents Mr.
Lajapathyroy, would argue that even in the absence of the permission obtained
from the Court under proviso to Order 23, Rule 1, the present suit is very well
maintainable as regards the claim of partition of the minor children is
concerned. It is profitable to extract the proviso with Order 23, Rule 1 CPC,
for better understanding of the legal position.
“1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after
the institution of a 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 14 of Order XXXII extend, neither the suit
nor any part of the claim shall be abandoned without the leave of the Court.”
7. The learned counsel for the petitioners in support of his contention
placed reliance upon a decision of the Supreme Court reported in 2000 1 Law
Weekly, 172, R.Rathinavel Chettiar and another Vs. V.Sivaraman and others
wherein Their Lordships while dealing with the provisions under Order 23, Rule 1
and 1-A, CPC observed as follows:
“6. Order 23, Rule 1, quoted above, provides that a plaintiff can withdraw
a suit or abandon a part of his claim unconditionally. It creates a right in
favour of the plaintiff to withdraw the suit at any time, after its institution.
Once the suit is withdrawn or any part of the suit is abandoned against all or
any of the defendants, unconditionally, the plaintiff cannot bring a fresh suit
on the same cause of action unless leave of the Court is obtained as provided by
Order 23, Rule 1 (3) (b).”
8. The learned counsel for the petitioners also draws attention of this
Court to a decision of this Court reported in 2006 2 Law weekly 259,
Dr.S.Jayakumar and P.Subbiah Gounder Vs. K.Kandasamy Gounder, in which the
learned Judge, after discussing the subject in detail referring to various
decisions of this Court and the Supreme Court and concluded that in the absence
of liberty obtained under Order 23, Rule 1, subsequently, the suit is barred.
9. The learned counsel for the respondents would also stress upon the
point that failure to get permission to enter into a compromise on behalf of the
minors in the earlier proceedings, will not bar the subsequent suit. As per
proviso to Order 23, Rule 1, if the minors are parties to a suit, the guardian
has to obtain the leave of the Court and then the rights of the minors could be
abandoned. If it is absent significantly, then the corollary thereof is that
the suit for the same relief in future is not barred. While the first
respondent made an endorsement as not pressing the suit by merely stating that
she agreed to live with her husband without problem, the said endorsement did
not injure the rights of the minors which are still surviving and the cause of
action for the partition is also continuing. As far as the claim for partition
for the minor children are concerned, the suit will stand and as for the
maintenance claim for the first respondent, the present suit in O.S. No.4 of
2008 will not survive.
11. With the above said observations, the Civil Revision Petition is
disposed of. Considering the nature of the case, the Family Court, Madurai, is
directed to dispose of O.S. No.4 of 2008 within six months from the date of
receipt of a copy of this order. Consequently, connected miscellaneous petition
is closed. No costs.
srm
To
The Family Court,
Madurai.