IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.12.2008 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN C.R.P.(PD) No.1394 of 2004 and C.M.P.No.11192 of 2004 1. Govindarasu 2. Kulasekaran ... Petitioners Vs 1. Veerakumar 2. The Executive Officer, Arulmighu Darabaraneeswara swamy Devasthanam, Thirunallar. 3. Santhamani ... Respondents This Civil Revision Petition is filed under Sec.115 of C.P.C. against the Order dated 29.01.2004 made in I.A.No.644 of 2003 in O.S.No.5 of 2003 on the file of the Principal District Munsif, Karaikkal. For Petitioners : Mr.R.Karthikeyan For Respondents : No appearance for R1 Mr.Srinath Sridevan for R2 Mr.Vasu for Mr.T.Susindran for R3 ***** O R D E R
This Civil Revision Petition is filed against the Order dated 29.01.2004 passed in I.A.No.644 of 2003 in O.S.No.5 of 2003 on the file of the Principal District Munsif, Karaikkal.
2. The plaintiffs 1 and 2 in O.S.No.5 of 2003 are the revision petitioners herein.
3. O.S.No.5 of 2003 has been filed by the revision petitioners and the first respondent herein, for declaration, declaring that the plaintiffs are entitled to possess and enjoy the suit properties as they are Nokan Maniam lands and for a consequential relief of direction, directing the second defendant/the third respondent herein, to vacate and surrender the peaceful possession of the suit properties after dismantling the superstructure erected by her. They also prayed for a direction, directing the second defendant/ third respondent herein to pay mesne profits from the date of plaint at a rate of Rs.1500/- per month.
4. Separate written statements were filed by the defendants/respondents 2 & 3 herein and the suit is being contested. Pending suit, the first defendant/second respondent herein filed an Interlocutory Application in I.A.No.402 of 2003 under order XIV Rule 2 read with Sec.151 C.P.C. to take up the issue regarding the Court Fees as a preliminary issue. The trial court by order dated 16.9.2003 allowed I.A.No.402 of 2003 and the plaintiffs in the suit were directed to produce the valuation certificate for the market value of the first two items of the property. Thereafter, the plaintiffs in the suit filed an application in I.A.No.644 of 2003 under Order XXIII Rule 3 C.P.C. read with Sec.151 C.P.C. to grant leave to the plaintiffs to withdraw the suit partly in respect of item No.1 and 2 of the suit properties and grant leave to them to file a separate suit in respect of the same and on the same cause of action. In the affidavit filed in support of I.A.No.644 of 2003, the plaintiffs stated that in compliance with the order passed by the trial court on 16.9.2003, in I.A.No.402 of 2003, they produced the valuation certificate and the matter was posted for taking steps. While steps were being taken, the erroneous valuation of the first and second items of the suit properties were brought to their notice. If the suit had to be valued according to the valuation certificate, the trial court would have no jurisdiction to entertain the suit in respect of the first and second items of the suit properties. It is further stated in the affidavit that they received the original documents filed by them in O.S.No.148 of 1971 and they found that Item Nos.1 and 2 of the suit property are absolute properties of the plaintiffs and not Maniam lands. Therefore, a mistake has been crept in the plaint in seeking for a proper relief with reference to the first two items of the suit property. If the suit is to be proceeded with in the present condition, there would not be any fair trial. That apart in respect of these two items of the property, there is a mis-joinder of the first defendant as a party in the suit. These defects are not curable by way of amendment in the plaint. But, the plaintiffs intended to continue the suit with regard to the third item of the suit property. They also have decided to file a comprehensive suit for declaration of their title and recovery of possession for the first two items of the property before the proper forum. Therefore, they have decided to withdraw the suit partly in respect of the first two items of the suit property. Hence, they filed I.A.No.644 of 2003 seeking for permission to withdraw the suit with regard to the items 1 and 2 of the suit properties and also seeking leave to them to file a separate suit in respect of the same on the same cause of action. This application was resisted by both the defendants by filing separate counters. In the counter filed by the first defendant/second respondent herein, the Executive officer stated that there is no scope to split and shunt two items of the properties out of the three items of the properties to evade the payment of court fees amounting to a sum of Rs.22,500/-. Therefore, the plaintiffs could not maintain the application and they have to get the return of the plaint to be presented before the proper forum after paying necessary court fee. Hence, they sought for the dismissal of the application. In the counter filed by the second defendant/third respondent herein, it is stated that the leave as prayed for could not be granted and the suit is to be returned to be presented before the proper forum after paying the court fees properly. The trial court by order dated 29.01.2004 permitted the plaintiffs to withdraw the suit partly in respect of items No.1 and 2 without granting leave to file a separate suit on the same cause of action. Aggrieved by the order of the trial court, the plaintiffs 1 and 2 in the suit have filed the above revision petition under Sec.115 of C.P.C.
5. This court, on 2.7.2004, granted interim stay and ordered notice to the respondents.
6. Heard the learned counsel for the petitioners and the learned counsel for the second respondent and the learned counsel for the third respondent. I have also gone through the documents and judgments filed by them in support of their submissions.
7. The learned counsel for the revision petitioners submits that the court below has committed an illegality in permitting the petitioners to withdraw the suit in respect of items 1 and 2 and refusing to grant leave to file a fresh suit. In support of his submissions, he relied on the following decisions:
1. A.I.R. (38) 1951 MDS 715 (Thadi Konda Veeraswami Vs Thullum Peda lakshmuda & others)
2. A.I.R. 1957 MDS 207 (Sambanda Naicker and others Vs Ranganayaki Ammal and another)
3. A.I.R. 1974 BOM 39 (Devidas Tulsiram Brijwani Vs The Commissioner, Poona Muncipal Corporation)
8. Per contra, the learned counsel appearing for the second respondent and the learned counsel for the third respondent supported the order of the trial court and pleaded for the dismissal of the revision petition.
9. I have considered the rival submissions carefully with regard to facts and citations.
(1). In A.I.R. (38) 1951 MDS 715 (cited supra), this Court held that where a plaintiff files a petition to withdraw the suit with permission to file a fresh suit regarding the same subject matter under Order XXIII Rule 1(2) C.P.C., the court has got the right to dismiss the petition, telling him that he may withdraw the suit if he wants but, that it will not give him permission to file a fresh suit regarding the same subject matter and the court cannot divide the petition into two and accept the withdrawal and refuse the liberty in the same order.
(2) In A.I.R. 1957 MDS 207 (cited supra), this court after going through the provisions of Order XXIII Rule 1(2) C.P.C., held that sub-clauses (a) and (b) of Rule 1(2) of Order XXIII deal with two different situations and not with similar or analogues situation. It will not be doing in violation to the language or to the spirit and object underlying the clauses of other sufficient grounds, if it is held that a wider discretion is to be given to the courts under sub-clause (b) than under sub-clause (a).
(3) In A.I.R. 1974 BOM 39 (cited supra), the Bombay High Court observed that for withdrawing a suit without liberty under Order 23, Rule 1(1) of the C.P.C., no permission or order of the court was required by the plaintiff. The plaintiff’s application for withdrawing the liberty to file a fresh suit under Order 23 Rule 1(2) and if the court below thought that the liberty should not be granted, it could reject that application, but, the court could not make an order whereby the plaintiff’s suit stood withdrawn without liberty to file a fresh suit, with the result that the plaintiff would precluded from filing a fresh suit in respect of the same cause of action as stated in sub rule 3 of Order 23 of C.P.C.
10. From the above judgments, the settled law is that, when an application is filed under Order 23 Rule (3) C.P.C., seeking leave to withdraw the suit with liberty to file a separate suit on the same cause of action, the trial court has to either allow the application or dismiss the application. The trial court could not give permission to withdraw and refuse to grant leave to file a fresh suit.
11. The order passed by the trial court on 29.01.2004, permitted the plaintiff to withdraw the suit partly without granting liberty to file a separate suit on the same cause of action. If the settled principle of law as emerged from the above said judgments is applied to test the order dated 29.01.2004, it is very clear that the order passed by the trial court is wrong as instead of rejecting the application, the trial court permitted to withdraw the suit without granting liberty to file a separate suit on the same cause of action.
12. If that being so, what is to be done in this matter which has been filed in the year 2004, challenging the order dated 29.01.2004. Admittedly, the suit was filed in the year 2003. In normal circumstances, when such an order is passed by the trial court, this court will set aside the order and remand the matter for fresh consideration. But, considering the fact that the suit is of the year 2003, I am not inclined to remand the matter to the trial court for fresh disposal and instead, I am deciding the interlocutory application itself on merits.
13. The case of the plaintiffs in I.A.No.644 of 2003 is that, the defects pointed out namely:
1. Items 1 and 2 of the suit properties are the absolute properties and not maniam lands and therefore, proper relief has not been prayed for;
2. In respect of the two items of the properties, there is a mis-joinder of the first defendant as party in the suit;
are incurable defects and they could not be cured by amending the plaint.
14. Hence, they sought for withdrawing the suit with regard to items No.1 and 2 of the suit properties and leave to them to file a separate suit in respect of the same.
15. I am unable to accept the reasons given by the plaintiffs for filing I.A.No.644 of 2003 under Order XXIII Rule (3) C.P.C. The defects pointed out by the plaintiffs in the affidavit filed in support of I.A.No.644 of 2003 are certainly curable by way of amendments and they should not
S.RAJESWARAN,J
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be permitted to proceed with the present suit for the third item of the property alone and file another suit in respect of items 1 and 2 of the suit properties. In such circumstances, I am of the considered view that there is no merit in I.A.No.644 of 2003 and the same is to be dismissed.
16. In the result, I.A.No.644 of 2003 is dismissed.
17. Considering the fact that the suit is of the year 2003, the trial court is directed to proceed with the suit as expeditiously as possible.
18. The Civil Revision petition is disposed of in the above terms and the connected miscellaneous petition is also closed.
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To
The Principal District Munsif,
Karaikal