IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24 .07.2009
CORAM:
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.R.P.(N.P.D) No. 2060 of 2008
and
M.P.No.1 of 2008
Thangavel .. Petitioner
-vs-
Kuppana Gounder .. Respondent
This civil revision petition is filed under Section 115 of CPC, against the order and decretal order dated 19.9.2007 passed in I.A.No. 929 of 2007 in O.S.No.431 of 2005 on the file of Principal District Munsif-cum-Judicial Magistrate, Erode.
For Petitioner : : Mr.V.Lakshminarayanan
For respondent : : Mr.N.Manoharan
O R D E R
The revision petitioner/respondent/defendant has filed this present civil revision petition as against the order dated 19.9.2007 in I.A.No.929 of 2007 in O.S.No.431 of 2005 passed by the learned Principal District Munsif-cum-Judicial Magistrate, Erode in allowing the application filed under Order 23 Rule 1 and Section 151 of CPC by granting permission to the respondent/petitioner/plaintiff to withdraw a suit O.S.No.431 of 2005 with a liberty to file afresh suit on the same of cause of action.
2. The trial Court, while passing orders in I.A.No.929 of 2007 on 19.9.2007 has inter alia opined that the respondent/ petitioner/plaintiff in order to prove the existence of 150 feet pathway in the plaint schedule property, an opportunity will have to be provided to him and therefore, the reason assigned by him in his affidavit is sufficient and resultantly allowing the application by observing that’ suit is dismissed as withdrawn as to file a fresh suit on the same cause of action’.
3. According to the learned counsel for the revision petitioner/respondent/defendant, the order of the trial Court in allowing I.A.No.929 of 2007 filed under Order 23 Rule 1 of CPC is illegal one and the reason assigned by the trial Court in permitting the respondent/petitioner/plaintiff to withdraw the suit is an erroneous one and as a matter of fact that an application to withdraw the proceedings can be granted only in the event of suit likely to be filed a same formal defect and more over, the trial Court has not appreciated the fact that already the respondent/ petitioner/plaintiff has filed an application for amendment and made an endeavour to introduce new set of facts and the same has been rejected by the trial Court as it changes the cause of action, this Court has also upheld the trial Court’s order in CRP(PD) No. 1593 of 2006 dated 26.6.2007 and since the trial Court has not looked into this aspect in a proper perspective, the same has resulted in cause of justice being defeated and therefore prays for allowing the civil revision petition in furtherance of substantial cause of justice.
4. Expatiating his submission, the learned counsel for the revision petitioner cites the decision reported by the Hon’ble Supreme Court in K.S.Boopathy -v- Kokila(2000(5) SCC 458 at 459) wherein it is held that’ the provision in Order 23 Rule 1 CPC is an exception to the common law principle of non-suit and Sub Rule(1) gives an absolute liberty to the plaintiff, where as under Sub Rule(3), the Court has the discretion to grant leave or not and further the discretion of the Court is to be exercised with caution and circumspection and all aspects of the matter are to be examined, including the desirability or otherwise of permitting a fresh round of litigation on a cause of action which has already been agitated and such examination is all the more important where the application under Or.23 Rule 1(3) is filed at the appeal stage and the Court’s time already utilised should not be wasted.
5. Added further the learned counsel for the revision petitioner refers to the order of this Court dated 26.6.2007 (passed in C.R.P(PD) No.1593 of 2006 as against the order passed in I.A.No.958 of 2006 in O.S.No.431 of 2005 on the file of the trial Court dated 19.9.2006) wherein this Court has observed as follows:
“It is seen from the records that earlier a commissioner was appointed and he has submitted his report stating that there is a pathway measuring about 75 sq.ft leading to the Well from the petitioner’s land. The petitioner has filed an application to amend the plaint to the effect that the actual length of the pathway is 150 sq.ft and due to typographical error, it has been wrongly mentioned as 75 sq.ft in the plaint. But the plaintiff has not produced any documents to prove the said facts’.
6. In response, the learned counsel for the respondent/petitioner/plaintiff submits that the respondent has filed I.A.No.929 of 2007 under Order 23 Rule 1 and Section 151 of CPC praying permission of the trial Court to pass an order of withdrawing the suit with granting liberty to file a fresh suit on the same cause of action and that the trial Court has taken into account the arguments advanced on respective sides and as ultimately allowed the application with a view to provide an opportunity to the respondent/plaintiff to prove the factum of extent of 150 ft pathway to going for “A”schedule property and further it has dismissed the suit as withdrawn and accorded permission to the respondent/plaintiff to file a fresh suit on the same cause of action.
7. In support of his contention that the trial Court has exercised its power under Order 23 Rule 1 CPC in a proper and effective way based on the facts and circumstances of the case, the learned counsel for the respondent/plaintiff cites the decision of this Court reported in Duraikannu -v- Malayammal (2003(3)M.L.J.551) wherein it is held that’ no doubt, a Court of appeal has power grant permission but such power is exercised only in appropriate cases by withdrawing the suit, the defendant cannot be deprived the benefit of the trial Court’s adjudication in his favour and that the withdrawal of the suit at the appellate stage has the effect of destroying the rights of the parties and Rule is not to enable the plaintiff’s to withdraw the suit after failing to conduct it properly before the trial Court etc.,’
8.He also relies on the decision of the Hon’ble Supreme Court in Beniram-v- Gaind(1982) 4 Supreme Court Cases 209)whereby the Hon’ble Supreme Court has observed that ‘request of plaintiff-appellant’s counsel for withdrawal of the suit with liberty to file a fresh suit on the same or on a different cause of action, allowed in the interest of justice subject to payment of Rs.1000/- by way of costs by the appellant.’
9. A perusal of paragraph 10 of the plaint in O.S.No.431 of 2005 filed by the respondent/plaintiff shows that a specific averment has been made by the respondent/plaintiff to the effect that ‘ on 13.7.2005, the defendant with a band of rowdy elements made an attempt to disturb the plaintiff’s right of taking water for four days out of eight days from the suit A schedule well, electric motor pump set, under ground pipeline, etc. His unlawful attempt was thwarted off only with very great difficulty. There is cholam crops, coconut trees in the land of the plaintiff and the same require water. The defendant is rich and powerful and has got men power. The defendant may renew his attempt at any time and prevent the plaintiff from taking water. Hence the defendant has to be restrained by means of a permanent injunction’.
10. More over in paragraphs 11 and 12 of the plaint it is mentioned as follows:
‘Further the defendant has to restore the suit B schedule foot path to its original position within a time to be stipulated by this Honourable Court. Hence, the plaintiff has come forward with the relief of declaration and consequential mandatory injunction for restoration of the suit B schedule foot path to its original position within a time to be specified by this Honourable Court. Hence the present suit for declaration, permanent and mandatory injunctions. Cause of action for the suit arose on the 12.6.2005 when the defendant obliterated a portion of the B schedule foot path and annexed the same with the defendant’s land with a view to obstruct the plaintiff from reaching the well, on all dates when he failed to restore the same to its original position, on 13.7.2005 when the defendant with a band of rowdy elements made an attempt to disturb the plaintiff’s right of taking water for four days out of eight days from the suit A schedule well, electric motor pump set, under ground pipeline, etc and on all subsequent days when the defendant threaten to do so at Elumathur Village, Erode Taluk wherein the suit properties are situate within the jurisdiction of this Honourable Court’.
11. It is relevant to make a mention that in the affidavit in I.A.No.929 of 2007 filed by the respondent/petitioner/plaintiff at paragraph 3, it is among other things mentioned that ‘ the length of the said foot path is 150 feet. Due to typographical error, he has given in the description of property that the length is 75 feet and that the amendment petition filed by him has also been dismissed by the trial Court and that the said defect is not curable at this stage and even if a decree for declaration and mandatory injunction is granted the same cannot be executed by the Court and since the defect is formal and cannot be cured, he may be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action etc and further regarding the relief of permanent injunction, if the Court feels fit that the present suit could be continued, the relief regarding ‘B schedule property may be withdrawn with a liberty to file a fresh suit’.
12. At this juncture, it is useful to refer to paragraph 9 of the plaint filed by the respondent/plaintiff which runs as follows:
‘On the 12.6.2005 the defendant obliterated a portion of the B schedule foot path and annexed the same with his land with a view to obstruct the plaintiff from reaching the well when he was out of station. When the plaintiff came to know the same demanded the defendant to restore the B schedule foot path to its original position, the defendant promised to restore the same within a month but contrary to his promise the defendant is further obstructing the plaintiff from taking water in the common well during his turns through the A schedule electric motor pump set and the under ground pipe line. Hence the plaintiff’s right in the suit B schedule foot path has to be declared and the same has to be restored to its original position by a mandatory injunction’.
13. In the memo of counter filed by the respondent/petitioner/defendant, it is mentioned that ‘ the very fact that the leave application is filed after their attempt to amend the plaint in I.A.No.958 of 2006 and later C.R.P.1593 of 2006 which also came to be dismissed refusing to alter the plaint more particularly the length of self proclaimed foot path. The application has no merit and the same deserves a dismissal’. Earlier it transpires that a Commissioner has been appointed and he has mentioned in his report that there is a pathway measuring about 75 feet leading to the well from the land of the respondent/plaintiff and that he has filed later I.A.No.958 of 2006 to amend the plaint stating that the actual length of the pathway is 150 feet and the wrong mentioning of 75 feet has occurred due to a typographical error.
14. At this stage, this Court recalls the decision of this Court in Singaravel Padayachi-v- Nagammal(1996 AIHC 4653) wherein it is observed that under O.23 R.1(3) for withdrawal of a suit, the existence of sufficient cause or any formal defect is necessary precondition and the suit for declaration of title sought to be withdrawn on ground that there were other purchasers also, who were to be impleaded and however, plaintiff was aware of existence of such two sale deeds as he was an attesting witness in respect of one of them and in view of the aforesaid circumstances, there does not exist sufficient ground or any formal defect and hence the withdrawal of suit with leave to file fresh one, cannot be granted’.
15. In T.Ponnirula Pillai-v- Western India Oil Distributing Co., Ltd(AIR (33) 1946 Madras 470 in regard to ‘Civil Procedure Code(1098) O.23, R.1 and O.8, R.6 claim to set off by defendant where the suit has been compromised and claim to set off withdrawn with liberty to be settled and disposed of by mutual consent out of Court and the subsequent suit for amount of set off , the claim to set off held, could not be enforced as it was not withdrawn with liberty to institute fresh proceedings’.
16. In the decision in Haji P.Abdul Rahiman-v- Dr.K.P.Narayanan (1997 AIHC 1164) ‘under O.23, R.1 withdrawal of suit filed for permanent prohibitory injunction restraining defendants from constructing buildings without leaving open space of 15 ft and in violation Kerala Building Rules and for mandatory injunction to demolish structures put up in plaint schedule property0 dismissal of it is held that no formal defect in suit or any other cogent and acceptable ground to allow plaintiff to withdraw suit and that the appellate Court is not justify in allowing the plaintiff to withdraw with a liberty to file fresh suit for the subject matter of very same cause of action’.
17. In the decision reported in Vallabh Das-v- Dr.Madan Lal(1970(1) S.C.C. 761 and 762) it is observed that ‘ expression ‘subject matter’ is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject matter of the second suit is the same as that in the previous suit etc., ‘. As a matter of fact in Rukma Bai .v. Mahadeo Narayan(ILR 42 Bom 155) the term’subject matter’ in O.23 R.1 of Code of Civil Procedure , means the series of acts or transactions alleged to exist giving rise to the relief claimed. To put it differently, ‘subject matter’ means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him’.
18. It is quite apt to quote the decision of this Court in Registrar, Manonamniam Sundaranar University-v- Suhura Beevi Educational Trust (AIR 1995 Madras 42) it is held as follows:
” Though it is the right of the plaintiff to choose the party respondent or defendants to a cause to be instituted or to give up or abandon a party at any stage of the suit or proceedings, such things cannot be allowed to be done without consequential amendment of pleadings. It is preposterous to claim a relief against a party or a relief, in terms, which will directly affect the rights of a party, but yet claim a right also either not to implead such a person or authority who may be directly affected as a party or give up or abandon such a person once earlier made a party to the proceedings. In such cases, in the absence of consequential amendments and decision of the relief prayed and relief sought for as well as the allegations pertaining to such a party, who is not impleaded or given up subsequently the proceedings will suffer the vice of not having before the Court the necessary parties and on such ground alone the proceedings will have to fail without there being any enquiry or adjudication on the merits of the claim. The Court in such cases cannot also pretend to be either ignorant or oblivious to such patent manoeuvres and manipulations or itself allow it to be made in gross abuse of the judicial process. A party who has filed its written statement cannot be given up behind its back, depriving its right to insist upon either the costs or even to raise a plea that in consequence of such giving up or withdrawal or abandoning the suit itself would be rendered futile and cannot be as it has been framed and filed and pursued’.
19. It is an axiomatic fact that no withdrawal will be allowed when the defendant has acquired a certain right in the subject matter of the suit, generally speaking, the leave sought for in regard to withdrawal of suit with a liberty to file fresh suit, such right is not an absolute one. More over where the withdrawal of earlier suit is not in terms of ingredients of O.23 R.1 of CPC , the benefit of Section 14 of Limitation Act cannot be extended when filing a fresh suit.
20. If a litigant desires to withdraw from the suit having a liberty to project a fresh suit then he must apply to the Court under Sub Rule (3) of O.23 R.1 of CPC to permit him to so but if he does not intend/desire to have the liberty then he can withdraw the suit of his under motion under Sub Rule (1) and not further order of the Court is necessary. A plaintiff in a Civil suit can always abandon a part of his claim in order to bring his suit even the Court fee paid by him a simple withdrawal under Sub Rule (1) brings along with it, the liability to pay the cost as may be awarded by the Court and a bar against a fresh suit on the same cause of action as per decision R.Mc dill & Co-v- Gouri Shankar(AIR 1975 Cal.294).
21. There is no provision in the Code of Civil Procedure which requires the Court to refuse the permission to withdraw a suit or to compel a plaintiff to proceed with his suit unless the same vested right of a third party has come into existence at the stage when the plaintiff seeks to withdraw his suit.(Hulas Raj (M/s) .v. K.B.Bass (1968 S.C.111). This is so because of withdrawal of the suit under Sub Rule(1) is complete as soon as takes place and in case, the Court is informed of it. That being so, there is no question of right to revoke the said withdrawal. Each and every case will have to be examined on a giving set off facts to determine where any right has accrued to the defendant and a suit cannot be withdrawn under O.23 R.1 of CPC( even where no permission sought for filing a fresh suit), if such right has accrued to the defendant at the time when the withdrawal is so sought. When an application for withdrawal of the suit is made with a permission to file a fresh suit and that application is dismissed, there is a bar to file another such application on the same cause of ground as per the decision reported in Krishnakumar-v- J.B.Bham (AIR 1971 Cal.322) and where any right has accrued to the defendant the facts of the case will have to be considered and examination in depth as per the decision reported in Mulshankar Narveram Ojha-v- Union of India (AIR 1985 NOC 152(Ori).
22. In the instant case on hand, admittedly the respondent/plaintiff has earlier filed I.A.No.958 of 2006 to amend the plaint and the same has been rejected by the trial Court on 19.9.2006 and as against the said rejection order, the respondent/plaintiff has filed C.R.P.(PD) No.1593 of 2006 and the same has been dismissed by this Court on 26.6.2007. Hence the order passed by this Court in C.R.P.(PD) No.1593 of 2006 dated 26.6.2007 binds the parties and the said decision has become final and conclusive one.
23. When such being, the facultative aspect of the matter, the respondent/plaintiff has projected I.A.No. 929 of 2007 praying for permission of the trial Court to grant permission for withdrawing the suit O.S.No.431 of 2005 on its file with a liberty to file fresh suit on the same cause of action. However, the trial Court’s observation’ while allowing I.A.No.929 of 2007 to the effect that in order to provide an opportunity to the respondent/plaintiff to establish the factum of existence of 150 ft pathway for proceeding towards “A” schedule property, the application is allowed by dismissing the suit as withdrawn granting liberty to file a fresh suit on the same cause of action’ this Court is of the considered view that its order in regard to grant of permission to the respondent/plaintiff to withdraw the suit is correct to that extent but when it has granted liberty to file a fresh suit on the same cause of action, the same is not perse correct in law because of the simple fact that what the respondent/plaintiff cannot achieve by way of his earlier I.A.No.958 of 2007 to amend the plaint and as confirmed by this Court by order in C.R.P.(PD) No.1593 of 2006 dated 26.6.2007, he has made an ingenious endeavour to file I.A.No.929 of 2007 praying under law the further relief of granting permission him to file a fresh suit on the same cause of
M.VENUGOPAL, J
sg
action and in this regard, the trial Court has committed a material irregularity and illegality and resultantly, this Court is perforced to allow the civil revision petition to promote the substantial cause of justice.
24. In fine, in the light of the quantitative and qualitative discussion mentioned supra, the civil revision petition is allowed and consequently, the order passed by the trial Court in I.A.No.929 of 2007 dated 9.9.2007 is set aside for the reasons assigned in this revision by this Court. Having regard to the facts and circumstances of the case, there will be no order as to costs. Consequently, connected M.P.No.1 of 2008 is closed.
24-07-2009
Index:Yes
Internet:Yes
sg
To the Principal District Munsif-cum- Judicial Magistrate, Erode.
Pre-delivery order in
CRP(NPD) No.2060/2008
Pre-delivery Order in CROP(NPD) No.2060 of 2008
To
The Honourble Mr.Justice M.VENUGOPAL
Respectfully submitted
(PA)