Madras High Court
K.Allah Pitchai vs K.A.Nagoor Mytheen .. 1St on 6 December, 2021
C.R.P.(PD) (MD) No.2267 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(PD) (MD) No.2267 of 2016
and
C.M.P.(MD) No.12271 of 2016
A.P.A.Meeyakhan (Died)
A.P.A.Malukkamali (Died)
A.P.A.Mytheen Beevi (Died)
Ahammed Meeral Beevi (Died)
1.K.Allah Pitchai
2.K.Malukkamali
3.K.Pakeer Muhammed
4.K.Nagooral Beevi
5.K.Pitchammal Beevi ..Petitioners 1 to 5/Petitioners
1 to 9/Plaintiffs 1 to 9
6.A.P.P.Ahemmed Meeran
7.A.P.P.Pakir Muhammed
8.A.P.P.Miyakhan .. Petitioners 6 to 8/Petitioners
11 to 13/Plaintiffs 11 to 13
A.P.P.Varisai Meeral Beevi (Died)
9.A.P.P.Pitchammal Beevi
10.A.S.P.Seeni Muhaideen
11.A.S.P.Kattu Bava
12.A.S.P.Allah Pitchai
13.A.S.P.Kaanammal
14.A.S.P.Pitchammal Beevi
15.A.S.P.Mangalal Bakiral Beevi
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C.R.P.(PD) (MD) No.2267 of 2016
16.A.S.P.Seeni Bakiral Beevi .. Petitioners 9 to 16/Petitioners
15 to 22/Plaintiffs 15 to 22
A.P.Varsai Meeral Beevi
17.K.M.Allah Pitchai
18.K.M.Nagoor Muhaideen
19.K.M.Allah Pitchai
20.K.M.Khan Muhammed
21.K.M.Seeni Muhammed
22.K.M.Pakir Muhammed
23.K.M.Sheik Malik .. Petitioners 17 to 23/Petitioners
24 to 30/Plaintiffs 24 to 30
24.K.M.Pitchammal Meeral Beevi .. 24th Petitioner/32nd Petitioner/
32nd Plaintiff
A.S.A.Pakir Muhammed
25.A.P.Mangala Bakir Muhammed
26.A.P.Jamal Beevi
27.A.P.Varisai Meeral Beevi
28.A.P.Allah Pitchai
29.A.P.Ahammed Meeral Beevi .. Petitioners 25 to 29/Petitioners
34 to 38/Plaintiffs 34 to 38
30.Sindha Beevi
31.A.M.Pakir Muhammed
32.A.M.Sheik Abdul Kadar .. Petitioners 30 to 32/Petitioners
40 to 42/Plaintiffs 40 to 42
33.A.M.Pitchai Meeral Beevi .. 33rd Petitioner/44th Petitioner/
44th Plaintiff
34.A.M.Mytheen Beevi
35.K.N.Allah Pitchai .. Petitioners 34 & 35/Petitioners
46 & 47/Plaintiffs 46 & 47
36.K.N.Sheik Abdul Kadar
37.K.N.Nagoor
38.M.Bakir Mohammed
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C.R.P.(PD) (MD) No.2267 of 2016
39.Malukkammal
40.A.M.Mytheen Beevi .. Petitioners 36 to 40/Petitioners
49 to 53/Plaintiffs 49 to 53
-vs-
1.K.A.Nagoor Mytheen .. 1st Respondent/1st Respondent/
1st Defendant
K.A.Ali Asan (Died)
2.K.A.Mitheen Beevi .. 2nd Respondent/3rd Respondent/
3rd Defendant
Esakkiammal (Died)
Vel Myil (Died)
3.Katchi Mytheen
4.Subbulakshmi
5.Manickaraj
6.M.Naggoral Beevi .. Respondents 3 to 6/Respondents
6 to 9/Defendants 6 to 9
7.K.M.Kansa .. 7th Respondent/31st Petitioner/
31st Plaintiff
8.A.P.Nagoor Mytheen .. 8th Respondent/39th Petitioner/
39th Plaintiff
9.A.M.Allah Pitchai .. 9th Respondent/43rd Petitioner/
43rd Plaintiff
10.A.M.Nagoor Meeral Beevi .. 10th Respondent/45th Petitioner/
45th Plaintiff
11.K.N.Mangala Pitchai .. 11th Respondent/48th Petitioner/
48th Plaintiff
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C.R.P.(PD) (MD) No.2267 of 2016
Prayer :- Petition filed under Section 115 of Civil Procedure Code to set
aside the fair and decretal order dated 22.07.2016 made in I.A.No.303 of
2015 in O.S.No.27 of 2006 on the file of the Sub Court, Ambasamudram.
For Petitioners : Mr.D.Srinivasa Ragavan
for Mr.S.P.Maharajan
For RR4 & 6 : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
For R5 : Mr.S.A.Ganapathiraman
RR 1 to 3 & 7 to 11 – set exparte
******
ORDER
The plaintiffs, whose application seeking to withdraw the plaint
with a liberty to file a fresh plaint was partly allowed by the learned
Subordinate Judge, Ambasamudram, are the petitioners herein
challenging the order dated 22.07.2016. The learned Judge permitted the
plaintiffs to withdraw the suit, but however, did not grant them a liberty
for filing a fresh suit on the same cause of action.
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C.R.P.(PD) (MD) No.2267 of 2016
2. The plaintiffs had filed the suit claiming partition and separate
possession of their 23/24th share in the suit property. The plaintiffs would
contend that the suit property originally belonged to one Backiyalakshmi.
She sold an undivided ½ share in the suit property along with other
properties on 30.09.1938 to one A.Pakkir Muhammed. She thereafter,
sold the remaining undivided ½ share to the said A.Pakkir Muhammed
by Sale Deed dated 05.04.1941. By way of these two Sale Deeds,
A.Pakkir Muhammed had became the absolute owner of the entire
property. A.Pakkir Muhammed had two sons and one daughter. On the
death of A.Pakkir Muhammed, his legal heirs became entitled to the suit
property and they have been in possession and enjoyment of the same.
Plaintiffs 1 and 2 and defendants 4 to 8 had no right to the suit property
at any point of time and they had not been in enjoyment of the same.
Since A.Pakkir Muhammed had refused to sell the properties to
defendants 4 to 8, they had started interfering with the peaceful
possession and enjoyment of the property. Therefore, the suit.
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C.R.P.(PD) (MD) No.2267 of 2016
3. The 9th defendant had filed a written statement in which she had
contended that the suit property originally belonged to one
Subbulakshmi, who has been shown as the 7th defendant and the 9th
defendant had purchased the property from her under a registered Sale
Deed dated 21.09.2005. The revenue records have also been mutated in
her name and the house tax in respect of the house built thereon was also
being paid only by the 9th defendant. The sale having been executed by a
person having a marketable title, the suit filed by the plaintiffs is not
maintainable. The 9th defendant would submit that the concept of a joint
family or partition was unknown to Mahammaden Law and therefore,
sought for dismissal of the suit.
4. The 7th and 8th defendants had filed a written statement inter alia
denying the allegations contained in the plaint and submitted that the 7th
defendant had purchased the suit property under two sale deeds from
T.E.P.Katchimydeen and S.Velumayil under two Sale Deeds dated
10.10.1994. Thereafter, the 7th defendant had put up construction in the
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C.R.P.(PD) (MD) No.2267 of 2016
property, electrified the same and she has been paying the electricity
charges as well as house tax in her name. Thereafter, the 7th defendant
had sold the suit property along with the house for a valuable
consideration to the 9th defendant under Sale Deed dated 21.09.2005 and
possession was also handed over to her. The 7th defendant would submit
that for over 50 years, she and her predecessor in title have been in
continuous possession and enjoyment of the property without any break.
The documents produced on the side of the plaintiffs do not relate to the
suit schedule property and the plaintiffs had no right to the same.
5. After arguments were heard in the above suit and the suit was
posted for judgment, the plaintiffs had come forward with the impugned
application under Order 23 Rule 3(A) to withdraw the suit in O.S.No.27
of 2006 with a liberty to file a fresh suit on the same cause of action.
6. The 9th defendant had filed a counter inter alia contending that
the application is a vexatious one and an attempt to start a second round
of litigation. The 9th defendant has already in a very great detail set out
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C.R.P.(PD) (MD) No.2267 of 2016
the Sale Deed under which she had purchased the respective properties
and asserted her independent title to the same. Without taking any steps
to amend the plaint, the plaintiffs proceeded with the suit over a decade
and now, when the suit was posted for judgment, the present application
has been filed, which is nothing but an abuse of process of Court. The
9th defendant in her counter had further submitted that the earlier suit in
O.S.No.518 of 1994 filed by the plaintiffs and his predecessors in title on
the file of the District Munsif, Ambasamudram, had been dismissed as
abated on 02.07.1996. That apart, the plaintiffs had moved two
applications in I.A.Nos.262 and 263 of 2016, which were dismissed by
the Court and now the plaintiffs have come forward with this application,
which is not maintainable.
7. The learned Subordinate Judge, Ambasamudram, by his order
dated 22.07.2016, dismissed the said application stating that the plaintiffs
had not specified any formal defect, nor sufficient grounds to withdraw
the suit with a liberty to file a fresh suit on the same cause of action as
contemplated under Order 23 Rule 1(3)(a). The learned Judge had stated
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that this is nothing but a dilatory tactics adopted by the plaintiffs.
However, the learned Judge permitted the plaintiffs to withdraw the suit,
without giving other relief to file a fresh suit on the same cause of action.
Aggrieved by the fact that liberty was not given to file a fresh suit, the
plaintiffs are before this court.
8. Heard the learned counsel on both sides.
9. As rightly pointed out by Mr.V.Meenakshi Sundaram, learned
counsel appearing for respondents 4 and 6, the plaintiffs have not made
out any formal defect, which allows them to seek to have the suit
withdrawn with liberty and neither has sufficient grounds been made out
for granting this relief. He would submit that the reasons given for
seeking to withdraw the suit with liberty to file a fresh suit does not spell
out either the formal defect or the sufficient grounds that existed in order
to permit the same. He would rely on the judgment in the case of
Rajendran and another vs. Annasamy Pandian (D) Thr. Lrs.,
Karthyayani Natchiar reported in 2017-5-L.W.201 to state that unless
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C.R.P.(PD) (MD) No.2267 of 2016
either of the two ingredients are satisfied the plaintiffs cannot seek to file
a fresh suit on the same cause of action after withdrawing the original
suit. In this regard, he would rely on paragraph 11 of the judgment,
which is extracted hereinbelow:-
“11.In terms of Order XXIII Rule 1(3) (b)
where the court 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 word "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 read 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 (a) of Rule (1) sub-rule (3), we choose
not to elaborate any further on the ground
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C.R.P.(PD) (MD) No.2267 of 2016
contemplated under clause (b) that is "sufficient
grounds".”
10. Importing the ratio of the said judgment into the case on hand,
it is seen that the plaintiffs have not satisfied either of the ingredients.
Therefore, no exception can be taken to the order under revision and the
order dated 22.07.2016 passed in I.A.No.303 of 2016 in O.S.No.27 of
2006 is confirmed. Consequently, the Civil Revision Petition fails and is
dismissed. However, there shall be no order as to costs. Connected
miscellaneous petition is closed.
06.12.2021
abr
Note:- In view of the present lock down
owing to COVID-19 pandemic, a web
copy of the order may be utilized for
official purposes, but, ensuring that the
copy of the order that is presented is the
correct copy, shall be the responsibility of
the Advocate / litigant concerned.
To
The Sub Court, Ambasamudram.
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C.R.P.(PD) (MD) No.2267 of 2016
P.T.ASHA, J.
abr
C.R.P.(PD) (MD) No.2267 of 2016
Dated: 06.12.2021
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