BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/12/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.1977 of 2008 MP.No.1/2008 1.Abdul Karim 2.Mohamed Dhajudeen ... Petitioners Vs 1.Mohamed Yameen 2.Mumdaj Begam 3.Parveen Banu ... Respondents Prayer This Civil Revision Petition is filed against the fair and decreetal order dated 16.4.2008 passed in IA.No.677/2005 in OS.No.347/2004 by the learned District Munsif, Pattukottai. !For Petitioner ... Mr.V.Ramamoorthy ^For Respondent ... Mr.S.Kumar :ORDER
This Civil Revision Petition is filed against the order dated
16.4.2008 passed in IA.No.677/2005 in OS.No.347/2004 by the learned District
Munsif, Pattukottai.
2. The short facts that are necessary for the disposal of this
Civil Revision Petition are as follows:-
a. The 2nd Petitioner herein is the 2nd Plaintiff in the above said
suit and the 1st Petitioner is his brother. The Petitioners have filed the above
said suit for permanent injunction against the Respondents in respect of the
suit properties.
b. The Respondents resisted the said suit denying the title of the
Petitioners and refuted the allegations made in the plaint. Issues were framed
and the evidence on the side of the Plaintiffs was also recorded. At that
stage, the Petitioners filed an application in IA.No.677/2005 seeking permission
to withdraw the suit and file a fresh suit on the same cause of action. The
said application was dismissed by the court below on the ground that the
Petitioners have not shown sufficient reason to get the relief, as they had
sufficient opportunity to include the relief of declaration in the present suit
itself by way of an amendment and having failed to avail the said chance, no
permission could be granted. Aggrieved against the said order, this Civil
Revision Petition has been filed by the Plaintiffs.
3. Mr.V.Ramamoorthy, the learned counsel for the Petitioners
contended that the court below ought to have permitted the Petitioners to
withdraw the suit and to file a fresh suit with the same of cause of action, as
it is only a formal defect and the Respondents having denied the title of the
Petitioners in respect of the suit properties, it has become just and necessary
for them to seek the relief of declaration, which cannot be done by way of
amendment in the later stage of the suit.
4. On the other hand, Mr.S.Kumar, the learned counsel for the
Respondents contended that the Petitioners were aware of the fact of denial of
title by the Respondents even when the Written Statement was filed and in such
factual situation, the Petitioners having failed to take steps to amend the
prayer at the earliest stage, the Petitioners cannot be permitted to withdraw
the suit when substantial evidence was already adduced by them. He would submit
that there did not exist any sufficient ground for withdrawal of the suit and
the court below was right in dismissing the application. The learned counsel
relied on the decision of this court rendered in the case of T.H.Syed Ahmed Vs.
T.H.Mustaq Ahmed [2005-3-TNLJ-Civil-359], wherein this has held thus:-
“Accordingly, the court is under the duty mandated to take into consideration
the relevant aspects of the matter including the desirability of permitting the
party to start a fresh round of litigation on the same cause of action. In
other words, grant of permission to withdraw the suit with leave to file a fresh
suit may result in annulment of a right vested in the Defendant or even a third
party and such facts are also be taken into consideration while granting
permission to withdraw the suit with leave to file a fresh suit under Order 23
Rule 1 of CPC. Unless there exists proper grounds for granting permission for
withdrawal of the suit with leave to file fresh suit by the Plaintiff, the
relief cannot be granted for merely asking for.
5. In the instant case, the evidence of the Plaintiffs was almost
over and after assessing the evidence the Petitioners have come forward with
this application belatedly. In considering the provision under Order 23 Rule 1
of CPC, this court has elaborately discussed the matter in the case of
A.P.S.Baharudeen V. Antony [1991-TNLJ-27]. This court has held as follows:-
“The sub rule comprises of two parts. The first part found in sub rule (3) (a)
refers to a suit which must fail by reason of ‘some formal defect’ while the
other part in sub rule (3)(b) speaks of ‘sufficient grounds’ for allowing the
Plaintiff to institute a fresh suit. Divergent views have been expressed as to
whether ‘sufficient grounds’ found in clause (b) should be read ejusdem generis
with ‘some formal defect’ found in clause (a) or independent of clause () of
Order XXIII Rule 1(3) of the Code of Civil Procedure. One view is that the
words ‘sufficient grounds’ have been used by the Legislature ejusdem generies
with ‘formal defect’. Another view is that ‘sufficient grounds’ in sub rule
3(b) need not be ‘formal defect’ and they must be given a wider meaning and
scope.
A third view which is in between the two extremes has also been expressed that
‘sufficient grounds’ should mean grounds analogous to formal defect though not
of the same genus….. An analysis of the above judgments show that it has been
generally accepted by the courts, that permission to withdraw a suit with
liberty to file a fresh suit can be granted, if the suit has to fail by reason
of formal defect or a ground/analogous thereto. But, courts are uniform in
holding that a Plaintiff who has failed to establish his case on merits, is not
entitled to as of right to withdraw the suit and file a fresh suit. On reading
of the two clauses in sub rule (3) of Order XXIII, Rule 1 of CPC, it is clear
that the legislature has advisedly used a distinctly different language. While
clauses (a) refers to the pending suit which must fail by reason of some formal
defect, clause (b) refer to the suit to be instituted with the leave of the
court. As a matter falls under clause (a) the court is concerned only with the
question whether the suit must fall by reason of a formal defect. On the other
hand, if clause (b) is invoked by a party, then the court must address itself to
the question whether there are sufficient grounds for allowing the party to
institute a fresh suit for the same subject matter or part thereon. Hence, in
my view it is Note to Office:- correct to say that ‘sufficient’ grounds’ should
be read ejusdem generis with ‘forma defect or that they should be analogous
thereto ‘sufficient grounds’ would cover a wider field and not restricted to a
‘formal defect’ or a similar defect. However, when the question arises before
an appellate court after the adjudication of the matter on merits by one court
is justified in depriving the Defendant of the benefit of a finding rendered in
his favour after a full trial. It is well known that when a court grants leave
to file a fresh suit on the identical cause of action, the withdrawn suit has no
existence in the eye of law.”
6. In the present case, one other factor that should be taken into
consideration is that the Respondents have filed a suit for partition in respect
of the suit properties in OS.No.61/2008 on the file of the Sub Court,
Pattukkottai. Therefore, as held by this court in the decisions cited supra, if
this case is considered as to whether there is any sufficient cause or whether
there is any formal defect by which the suit has to fail, I am of the opinion
that both the grounds do not exist. The court below has elaborately discussed
the matter in detail and gave a finding that there is no reason to grant
permission to the Petitioners to withdraw the suit. There is no error of
jurisdiction in the impugned order passed by the court below.
8. In the result, this Civil Revision Petition is dismissed. No
costs. Consequently, the connected MP is closed.
Srcm
To:
The District Munsif, Pattukottai