Madras High Court
Chellamuthu Gounder vs Kuppusamy Gounder on 17 April, 2021
CRP.PD.No.3644 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP (PD) No.3644 of 2018
and
CMP.No.20275 of 2018
Chellamuthu Gounder ... Petitioner
Vs.
1. Kuppusamy Gounder
2. Kuppusamy Gounder
3. Chellamuthu ... Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decretal dated 16.08.2018
made in I.A.No.1361 of 2017 in O.S.No.155 of 2003 on the file of the
District Munsif, Dharapuram by allowing this Civil Revision Petition.
For Petitioner : Mr.N.Ponraj
For Respondents : Mr.R.Asokan (for R1)
ORDER
This Civil Revision Petition is directed against the fair and decretal
order passed in I.A.No.1361 of 2017 in O.S.No.155 of 2003 dated
16.08.2018 on the file of the District Munsif, Dharapuram, thereby
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CRP.PD.No.3644 of 2018
dismissing the petition seeking permission to withdraw the suit with liberty
to institute a fresh suit on the same cause of action.
2. The petitioner is the plaintiff and the respondents are the
defendants. Originally, the petitioner filed a suit seeking right in Well
comprised in S.No.354/1 with 6 HP oil engine and to get water for 4 days in
8 days as per the partition deed dated 28.03.1959 and 01.07.1967. On
receipt of the summons, the respondents filed their written statement and
specifically avered that no Well is situated in S.No.354/1 and the Well is
situated only in S.No.352, in which the petitioner has absolutely no right. It
is also stated that the respondents alone have right to draw the water from
the Well. While pending the suit, an Advocate Commissioner was appointed
and he also confirmed the contentions raised by the respondents. Therefore,
the petitioner was constrained to file a petition in I.A.No.928 of 2017 to
amend the Survey Number as S.No.352 instead of S.No.354/1 in the
schedule of property and the same was dismissed. As such, the petitioner
filed a petition seeking permission to withdraw the present suit with liberty
to file a fresh suit for the same cause of action.
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CRP.PD.No.3644 of 2018
3. The learned counsel for the petitioner relied upon the judgment
reported in (2017) 5 SCC 63 (V.Rajendran -vs- Annasamy Pandian),
wherein it is held as follows:-
“10. In K.S.Bhoopathy v. Kokila (2000) 5 SCC 458, it has
been held that it is the duty of the Court to be satisfied about the
existence of “formal defect” or “sufficient grounds” before
granting permission to withdraw the suit with liberty to file a
fresh suit under the same cause of action. Though, liberty may
lie with the plaintiff in a suit to withdraw the suit at any time
after the institution of suit on establishing the “formal defect”
or “sufficient grounds”, such right cannot be considered to be
so absolute as to permit or encourage abuse of process of court.
The fact that the plaintiff is entitled to abandon or withdraw the
suit or part of the claim by itself, is no licence to the plaintiff to
claim or to do so to the detriment of legitimate right of the
defendant. When an application is filed under Order 23 Rule 1
(3) CPC, the Court must be satisfied about the “formal defect”
or “sufficient grounds”. “Formal defect” is a defect of form
prescribed by the rules of procedure such as, want of notice
under Section 80 CPC, improper valuation of the suit,
insufficient court fee, confusion regarding identification of the
suit property, misjonder of parties, failure to disclose a cause of
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CRP.PD.No.3644 of 2018
action, etc. “Formal defect” must be given a liberal meaning
which connotes various kinds of defects not affecting the merits
of the plea raised by either of the parties.
11. In terms of Order 23 Rule 1 (3) (b) where the cournt is
satisfied that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit, the Court may permit the
plaintiff to withdraw the suit. In interpretation of the words
“sufficient grounds”, there are two views: one view is that these
grounds in clause (b) must be “ejusdem generis” with those in
clause (a), that is, it must be of the same nature as the ground in
clause (a), that is, formal defect or at least analogous to them;
and the other view was that the words “other sufficient grounds
in clause (b) should be rad independent of the words a “formal
defect” and clause (a). Court has been given a wider discretion
to allow withdrawal from suit in the interest of justice in cases
where such a prayer is not covered by clause (a). Since in the
present case, we are only concerned with “formal defect”
envisaged under clause 9a) of Rule 1 sub-rule (3), we choose
not to elaborate any further on the ground contemplated under
clause (b), that is, “sufficient grounds”.
12. In the present case, the appellants have filed the suit
describing the suit property as Suvey No.192/9 but the
respondents are said to have transferred the patta for the suit
property setting as Survey No.192/14. The defect in the survey
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CRP.PD.No.3644 of 2018
number of the suit property goes to the very core of the subject-
matter of the suit and the entire proceedings would be fruitless
if the decree-holder is not able to get the decree executed
successfully and thus, the said defect will constitute to be a
“formal defect” within the meaning of Order 23 Rule 1(3)(a)
CPC. That apart, the respondents are said to have executed an
Inam settlement deed on 21.09.2012, in favour of their son
Aranmanai Pandian, mentioning the suit property as Survey
No.194/14. We are convinced that the case of the appellants
would fall under clause (a) of Rule 1(3) CPC.
13. In the facts and circumstances of the case, the trial
court considered the allegation set out in the application as a
ground for withdrawal. The view taken by the trial court that the
suti suffered from a formal defect to allow the appellants to
withdraw the suit with permission to institute a fresh suit, is
correct. The High Court, in our view, was not right in
interfering with the discretion exercised by the trial court,
permitting the appellants to withdraw the suit with liberty to file
a fresh suit. Based on the order passed by the trial court, the
appellants have already filed suit before the District Munsif and
the same is numbered as OS.No.11 of 2015. The High Court
while passing the order on 9.3.2015 Annasamy Pandian
v.Rajendran, 2015 SCC OnLine Mad 261 : (2015) 2 LW 360
does not seem to have kept in view of the said suit filed by the
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CRP.PD.No.3644 of 2018
appellants. In the facts and circumstances of the case, the
impugned order passed by the High Court cannot be sustained”.
4. The Hon'ble Supreme Court of India has held that the defect in the
Survey Number of the suit property went to the very core of the subject-
matter of the suit and the entire proceedings would be fruitless if the decree-
holder was not able to get the decree executed successfully. Therefore, the
said defect constituted a “formal defect” within the meaning of Order 23
Rule 1 (3) (a) of the Code of Civil Procedure.
5. In the case on hand, the suit Well is not situated in the land
comprised in S.No.354/1 and as per the contentions of the respondent, the
Well is situated in S.No.352 at Peramiam Village, Dharapuram Taluk. In
fact, the petitioner also filed a petition seeking amendment of the Survey
Number and the same was dismissed. Though the petitioner failed to
challenge the said order in the manner known to law, he come forward with
the petition to withdraw the suit with liberty to institute a fresh suit on the
same cause of action. Therefore, the judgment cited by the learned counsel
for the petitioner is squarely applicable to the present case on hand, since
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CRP.PD.No.3644 of 2018
the defect in the plaint is only a formal defect and it is within the meaning
of Order 23 Rule 1(3) (a) of the Code of Civil Procedure.
6. In view of the above discussion, this Civil Revision Petition is
allowed and the order passed in I.A.No.1361 of 2017 in O.S.No.155 of 2003
dated 16.08.2018 is set aside on condition that the petitioner shall pay a sum
of Rs.5,000/- as costs to the respondents, within a period of two weeks from
the date of receipt of a copy of this order. The petitioner is permitted to
withdraw the suit in O.S.No.155 of 2003 and to file a fresh suit on the same
cause of action. It is made clear that the petitioner shall not amend any of
the averment made in the present plaint, except the Survey Number.
Consequently, the connected Miscellaneous Petition is closed. No costs.
17.04.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
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CRP.PD.No.3644 of 2018
G.K.ILANTHIRAIYAN,J.
Kv
To
1. The District Munsif, Dharapuram.
2. The Section Officer,
V.R. Section, High Court of Madras.
CRP (PD) No.3644 of 2018
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.3644 of 2018
17.04.2021
https://www.mhc.tn.gov.in/judis/
