IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.03.2007
CORAM
The Hon'ble Mr.Justice P.Jyothimani
C.M.P. No.9691 of 2006
in
S.A. No.43 of 1998
ORDER
~~~~~
The appellant in the Second Appeal has filed the
present petition under Order 23 Rule 1 of Code of Civil
Procedure praying for leave to withdraw the suit with
liberty to institute a fresh suit on the same cause of
action. The petitioner has filed the suit in O.S.No.88 of
1989 on the file of District Munsiff, Gudalur against the
respondent praying for an order of injunction restraining
him from interfering with his possession. The suit property
was to the extent of 3.30 acres comprised in R.S.No.382/1
Old No.113/1 in Masinagudi Village, Gudalur Sub District and
Nilgris District.
2. It is seen in the plaint that the plaintiff’s claim
is based on a sale deed stated to have been executed by the
Official Receiver, Coimbatore in I.P.No.3 of 1968 registered
document No.2425 of 1977 in the Office of Joint Registrar,
Coimbatore. It is also specifically stated in the plaint
that to the knowledge of the plaintiff the defendant has
purchased + share of the suit property from one Ganesh Rao
in 1987 however stating that the said Ganesh Rao does not
have any title to convey. It is also the case of the
plaintiff that he has been in possession as a owner since
1964 and perfected title by adverse possession also.
Apprehending that the defendant may enter into the property,
a suit for injunction was filed.
3. It is seen that the defendant has filed the written
statement on 19.11.1989 disputing the title of the plaintiff
in respect of the suit property, apart from disputing
possession of the plaintiff also. It is also the specific
case of the defendant that the defendant has purchased the
property to an extent of 3.30 acres comprised in S.No.113/1
presently R.S.No.382/1 from the previous owner Ganesh
Prasanna, S/o Jaganatha Rao under a registered sale deed
dated 05.05.1987 and registered document No.822/87 on the
file of the Sub-Registrar, Gudalur and the defendant’s
vendor was in possession dating back to 1975. It is also
specifically stated in the written statement in paragraph 11
that the suit without declaration is not maintainable in the
following terms:
“11. In any view of the case, the suit is not
maintainable without the prayer of declaration of
the plaintiff’s title if any, to the suit
property. The plaintiff’s own documents falsify
his case.”
4. It is with that specific pleading the matter was
taken up for trail. While the Trial Court has decreed the
suit for injunction, the First Appellate Court has allowed
the appeal of the defendant and dismissed the suit, as
against which the second appeal is filed. It is pending the
Second Appeal the present petition is filed under Order 23
Rule 1 Code of Civil Procedure.
5. Mr.S.V.Jayaraman, learned Senior Counsel appearing
for the petitioner would submit that by allowing the
petition with permission to the plaintiff to file a fresh
suit on the same cause of action, no prejudice will be
caused to the defendants, since the defendants rights are
not going to be affected. While it is admitted that the
contents of the pleadings are definite that the plaintiff
has come to the Court based on a document, which has been
denied by the defendant, who has made a claim that he has
purchased the property under a document.
6. Mr.S.Parthasarathy, learned Senior Counsel
appearing for the respondent would submit that such liberty
to file a fresh suit on the same cause of action may not be
given. Even though the learned Senior Counsel would submit
that such power is discretionary in nature, merely because
no prejudice will be caused to the defendant that itself
cannot be the ground for granting such permission. He would
submit that while the suit was filed in 1989 and the Trial
Court has given a judgement on 14.10.1996, the First Appeal
Court has given judgement on 03.09.1997 and the Second
Appeal itself has been pending before this Court from 1998
onwards, the petitioner has chosen to file the present
petition in September 2006, which is not only belated but
the conduct of the petitioner must be taken into
consideration while grating such permission.
7. He would also state that when the title was
disputed by the defendant in the written statement at the
earliest point of time and in spite of the denial of title
if the plaintiff has not taken steps to amend the plaint at
the earliest point of time, he cannot be permitted to do so
in the Second Appeal stage. He would also rely upon the
judgement of the Hon’ble Supreme Court rendered in AIR 2000
SC 2132 to substantiate his contention that the discretion
any power has to be exercised cautiously. It is true that
Order 23 Rule 1 starts with the word “at any time after the
institution of a suit”, which includes the pendency of the
appeal also but ultimately under Order 23 Rule 1(3), the
Code of Civil Procedure states that it is only on the
sufficient grounds being made out, a party can be allowed to
institute a fresh suit on the same subject matter, however,
subject to certain terms. The said clause runs as follows:
“(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some
formal defect, or
(b) that there are sufficient grounds for allowing
the plaintiff to institute a fresh suit for the
subject matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the
plaintiff permission to withdraw from such suit or
such part of the claim with liberty to institute a
fresh suit in respect of the subject matter of
such suit or such part of the claim.”
8. While construing the said discertionary powers, as
rightly pointed out by the learned Senior Counsel for the
respondent, the Hon’ble Supreme Court in the judgement
rendered in K.S.Bhoopathy and others Vs. Kokila and others
reported in AIR 2000 SC 2132, has held that merely
safeguarding the interest of defendants is not sufficient
for the purpose of granting permission to withdraw the suit
with liberty to file a fresh suit on the same cause of
action and the Court has to consider the entire situation
while exercising the discretion since the provision is an
exception to the common law principle of non suit. A
distinction has been made between Order 23 Rule 1(1) and 3.
The Hon’ble Supreme Court has also held that it is not only
the interest of the defendant, which has to be safeguarded
but also may result in the amendment of right vested in the
third party apart from stating that such a permission may
result in wastage of public time of Courts in the following
words:
“12. The provision in Order XXII Rule 1 C.P.C.is
an exception to the common law principle of non
suit. Therefore on principle an application by a
plaintiff under sub-rule (3) cannot be treated on
par with an application by him in exercise of the
absolute liberty given to him under sub-rule (1).
In the former it is actually a prayer for
concession from the Court after satisfying the
Court regarding existence of the circumstances
justifying the grant of such concession. No
doubt, the grant of leave envisaged in sub-
rule(3) of Rule 1 is at the discretion of the
Court but such discretion is to be exercised by
the Court with caution and circumspection. The
legislative policy in the matter of exercise of
discretion is clear from the provisions of sub-
rule (3) in which two alternatives are provided.
(1) where the Court is satisfied that a suit must
fail by reason of some formal defect, and the
other where the Court is satisfied that there are
sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject matter of
a suit or part of a claim. Clause (b) of sub-
rule (3) contains the mandate to the Court that
it must be satisfied about the sufficiency of the
grounds for allowing the plaintiff to institute a
fresh suit for the same claim or part of the
claim on the same cause of action. The Court is
to discharge the duty mandated under the
provision of the Code on taking into
consideration all 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. This becomes all the more
important in a case where the application under
Order XXIII Rule (1) is filed by the plaintiff at
the stage of appeal. Grant of leave in such a
case would result in the unsuccessful plaintiff
to avoid the decree or decrees against him and
seek a fresh adjudication of the controversy on a
clean slate. It may also result in the
contesting defendant losing the advantage of
adjudication of the dispute by the Court or
Courts below. Grant of permission for withdrawal
of a suit with leave to file a fresh suit may
also result in annulment of a right vested in the
defendant or even a third party. The
appellate/second appellate Court should apply its
mind to the case with a view to ensure strict
compliance with the conditions prescribed in
Order XXIII, Rule 1(3), C.P.C for exercise of the
discretionary power in permitting the suit with
leave to file a fresh suit on the same cause of
action. Yet another reason in support of this
view is that withdrawal of a suit at the
appellate / second appellate stage results in
wastage of public time of Courts which is of
considerable importance in the present time in
view of large accumulation of cases in lower
Courts and inordinate delay in disposal of the
cases.”
9. In the present case as I have narrated above, when
the defendant has specifically denied the title of the
plaintiff and the plaintiff has come forward not only on the
basis of title by adverse possession but also basically on
the basis of the title based on document, it cannot be said
as if the plaintiff was not aware that he should seek for
declaration.
10. In this regard as rightly pointed out by the
learned Senior Counsel for the respondent, which is
relevant, as I have enumerated above that the defendant in
the written statement filed in the suit has specifically
stated that the suit for bare injunction is not maintainable
without declaration. That was filed as early as 19th
November 1989. In spite of that the plaintiff has not
chosen to make any efforts to amend the pleading in
accordance with the Code of Civil Procedure, which gives
enormous powers. Having allowed the Trial Court to proceed
and the First Appellate Court to go ahead with the case and
even in the Second Appeal stage, which was admitted as early
as in the year 1998 after the lapse of nearly 9 years the
present petition is filed for a permission to withdraw the
suit with liberty to file a fresh suit on same cause of
action. By applying the yardstick stipulated by the Hon’ble
Supreme Court as stated above and in exercise of the
discretionary powers granted under Order 23 Rule 1 (3) of
the Code of Civil Procedure, I do not think that this is a
fit case wherein leave can be given to the plaintiff to file
a fresh suit on same cause of action. In view of the same,
the C.M.P.is dismissed.
nbj
[PRV/10217]