Madras High Court
The Members Of Hindu Sambavar ... vs V.Ananthakrishnan on 25 October, 2021
C.R.P(PD)(MD).No.15 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.10.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRP(PD)(MD).No. 15 of 2021
and
C.M.P(MD).No.138 of 2021
The members of Hindu Sambavar Samuthayam
Chantaivazhi, Puliyoorkurichy,
Kalkulam Village, Thuckalay,
Kanyakumari District,
Represented by its President. : Petitioner/ Petitioner/plaintiffs
Vs.
1.V.Ananthakrishnan
2.A.Chenthilkumar
3.A.Jeyabalan
4.M.Jeyadeesh : Respondents/Respondents/Defendants
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decreetal order, dated 25.02.2020
passed in I.A.No.1 of 2019 in O.S.No.341 of 2012 on the file of the
Subordinate Court, Padmanabhapuram.
1/17
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
For Petitioners : Mr.C.Kishore
For Respondents : Mr.K.N.Thampi, for R1 to R3.
: No Appearance, for R3.
ORDER
The Civil Revision is directed against the order passed in I.A.No.1
of 2019 in O.S.No.341 of 2012, dated 25.02.2020 on the file of the
Subordinate Court, Padmanabhapuram, in dismissing the petition filed
under Order 23 Rule 1(3) of CPC.
2.The civil revision petitioner is the plaintiff and he has filed a suit
claiming the reliefs to declare the plaintiff's title and possession over the
suit property and the Arulmigu Sudalaimadan Temple situated therein; and
for permanent injunction restraining the respondents/defendants and their
agents and servants from disturbing the plaintiff from conducting regular
poojas and worshipping in the said temple and from preventing the regular
maintenance of the suit property and the temple therein by the plaintiff.
3.The respondents/defendants have filed their written statement and
are contesting the suit. After commencement of trial, the plaintiff
Samuthayam has filed a petition under Order 23 Rule 1(3) CPC, seeking
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
permission to withdraw the suit with liberty to file a fresh suit in respect of
the subject matter of the suit. The learned Subordinate Judge, after enquiry,
has passed the impugned order on 25.02.2020, dismissing the said petition.
Aggrieved by the said order of dismissal, the plaintiff Samuthayam has
come forward with the present revision.
4.The plaintiff's case in the petition filed under Order 23 Rule 1(3)
CPC is that the plaintiff came to know that the sale deed No.2445/1121
ME, (Malayala Era) stands in the name of the plaintiff and so there is no
necessity to declare the plaintiff's title and that therefore, the plaintiff was
constrained to not press the suit with liberty to file a fresh suit in respect of
injunction relief and also for some other reliefs in accordance with the
action, which may likely to be taken by the defendants, that the plaintiffs
will be put to irreparable loss and injury, if the permission sought for is not
granted and that the documents related to the suit property are received
now only and hence, a fresh suit with distinct relief has to be filed.
5.The defence of the defendants is that the plaintiff has filed the suit
in the year 2012 and the above petition has been filed after more than 7
years from the date of the suit, that if the permission is granted to withdraw
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
the suit with liberty to file a fresh suit on the same cause of action, it may
result in annulment of right vested in the defendants and there will be no
end to the litigation between the parties, that the plaintiff's failure to prove
his case by adducing requisite evidence cannot be a ground to permit him
to withdraw the suit with liberty to file another suit and that the defendants
will suffer heavy loss and hardship, if the permission is granted.
6.The learned counsel for the revision petitioner would contend that
the plaintiff has filed the suit for declaration and permanent injunction in
respect of the suit property by tracing the title through two persons Aandi
and Kolappan as its original owners and on their oral dedication of the suit
property to the plaintiff's Samuthayam 50 years back, the plaintiff has got
title to the suit property and that only after commencement of trial, they
came to know about the registered document in Document No.2445/1121
ME, and thereby, the plaintiff's Samuthayam got title to the suit property
directly and as such, the present suit is likely to fail for a formal defect and
that therefore, the plaintiff was constrained to file the above petition.
7.The learned counsel for the respondents 1 to 3 would submit that
prior to the filing of the above petition, the plaintiff has filed a petition for
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
amendment under Order 6 Rule 17 CPC, by alleging the very same reasons
now canvassed in the present petition, that the learned Subordinate Judge,
after enquiry, has passed an order, dated 30.10.2014, dismissing the said
petition, that the plaintiff aggrieved by the said order, has preferred a
revision before this Court in CRP(MD)(NPD)No.259 of 2015 and this
Court has dismissed the revision by confirming the dismissal of the
amendment petition vide order, dated 22.06.2016, and that thereafter, the
plaintiff has filed the present petition invoking Order 23 Rule 1 (3) of
CPC. He would further submit that the defendants have filed the written
statement, disputing the title of the plaintiff as shown in the plaint
specifically and that the plaintiff, without attempting to adduce evidence
and prove his case, has now sought permission to file another suit and
reagitate the matter again, which cannot be permitted.
8.Before entering into further discussion, it is necessary to refer the
Order 23 Rule 1 (3) CPC :
“(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,
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
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.”
9.The learned counsel for the petitioner has relied on the decision of
this Court in A.P.S.Bahurudeen and another Vs. Antony and Others
reported in 1992 (2) MLJ 563, and this Court after referring to various
decisions, has summed up the legal position and the same is extracted
hereunder :
“28. An analysis of the above judgments shows 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 a 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 right to withdraw the suit and file a fresh suit.
On a reading of the two clauses in Sub-rule (3) of Order 23,
Rule 1 of the Code of Civil Procedure, it is clear that the
legislature has advisedly used a distinctly different language.
While Clause (a) refers to the pending suit which must fail by
reason of some formal defect, Clause (b) refers to the suit it is
instituted with the leave of the court. If a matter falls under
Clause (a), the court is concerned only with the question
whether the suit must fail by reason of a formal defect. On the
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
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 thereof. Hence, in my view, it is
not correct to say that sufficient grounds' should be read
ejusdem generis with 'formal 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 or
two courts, the test will be whether the 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.
It is not available for any purpose and the parties are
relegated to the same position which they occupied before the
suit was brought. Hence, the court has to consider in each
case when an application is filed in the appellate stage for
withdrawing the suit with liberty to file a fresh suit, whether
the defendant should be driven back to original position in
which he was prior to the filing of the suit, even though he
has come out successful after a full trial.
29. Applying the above tests to the case, it is clear that there
is no ground for granting the permission sought by the
petitioners. With reference to the first ground urged by the
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
petitioners that they have been advised that the Government
is a necessary party, the objection was taken by the
respondents at the earliest stage in the written statement. An
issue was framed in the trial court as to whether the suit was
bad for non-joinder of necessary parties. The issue was
answered against the petitioners. In the lower appellate court
also, the point was considered again and answered against the
petitioners. In the Second Appeal, the question was argued
before me. Learned Counsel for the petitioners contended that
the Government is not necessary party. It is only after I
indicated my view against the said contention, the present
petition has been filed alleging that the petitioners are
advised that the Government is a necessary party. I have
already referred to the uniform view taken by the courts that
non-joinder of necessary parties is not a formal defect.
Hence, I hold that the first ground urged by the petitioners is
not sufficient for granting permission to them to withdraw the
suit.
30. The second ground is that material documents have
been discovered. These documents have been filed along with
an application for admitting them as additional evidence in
the second appeal. (Vide: C.M.P. No. 10808 of 1990). When
the appeal was argued, the civil miscellaneous petition was
also argued Learned Counsel for the respondents pointed out
that none of the documents would be of any use to the
petitioners in the present case. It has been repeatedly held, as
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
seen already, that permission to withdraw a suit cannot be
granted for the purpose of enabling the plaintiff to adduce
fresh evidence or more evidence in a fresh suit. Thus, the
second ground also fails.”
10.The learned counsel for the petitioner has also cited a decision of
Hon'ble Supreme Court in Baniram and others Vs. Gaind and others
reported in AIR 1982 Supreme Court 789, and argued that for want of
pleadings, with respect to tracing out the title of the suit property may be
taken up as fatal and result in dismissal of the suit. In the decision of the
Hon'ble Supreme Court referred by the learned counsel for the revision
petitioner, the learned counsel for the appellant therein after arguing for
sometime and on a particular point, had conceded that the said aspect was
not pleaded in the plaint and at that stage, he immediately expressed his
wishes to withdraw the suit with liberty to file a fresh suit on the same
cause of action or on a different cause of action. The Hon'ble Supreme
Court, considering the fact that non-pleading may prove a technical
impediment and may result in the dismissal of the appeal, permitted the
appellant/plaintiff to withdraw the suit, with liberty to file a fresh suit. In
the said case, admittedly, the appellant/plaintiff has not specifically
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
invoked Order 23 Rule 1(3) of CPC and no order was passed specifically
under the said provision. Considering the facts and circumstances and also
the plea raised at the middle of the arguments, the Hon'ble Apex Court,
after considering the same as just and proper in the interests of justice,
permitted to withdraw the suit.
11.It is pertinent to mention that there must be a formal/technical
defect and that if the suit is proceeded with, the suit may result in dismissal
on the ground of the said formal or technical defect. In the absence of any
formal defect/technical defect, the applicant must be plead and prove
sufficient grounds for seeking permission to withdraw the suit with liberty
to file a fresh suit.
12.In the case on hand, as already pointed out, according to the
plaintiff's Samuthayam, they have traced out the title wrongly in the plaint
and only after the commencement of trial, they came to know about the
existence of a title deed which gives absolute title to the plaintiff. At this
juncture, it is necessary to refer the decision of this Court reported in 1989
1 MLJ 136 [Madhavan Vs. Kannammal],
“7. .......It is only a mistake in tracing the history of title
to the properties that was committed by the plaintiffs. Such a
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
mistake cannot deprive them of their title to the properties.
When the Court finds on the facts that title to the properties
vested in Kanniappa Mudaliar and thereafter devolved on his
wife and mother by virtue of the provisions of the Hindu
Succession Act, then it will not be proper for the Court to
refuse relief on a technical ground that they had not set out the
correct root of title in their plaints. It cannot be disputed that
the Courts of law have power to grant decrees which would be
warranted by the facts of the case when such facts have been
established by indisputable records even if they were not
exactly pleaded by the parties. It will be unjust to dismiss the
suits on a technicality and drive the plaintiffs to fresh suits.”
13.This Court, following the above judgment, in Rajeswari vs.
Dhanammal reported in 1994 1 MLJ 401, has held that a party cannot
abandon his own case and claim relief on the basis of the other party's plea,
is not applicable, where one party does not seek relief on the basis of the
plea of the other party, but only on the facts established on record, though
they are at variance with his own pleadings.
14.No doubt, in the case on hand, the plaintiff, claiming title and
possession to the suit property, has sought for the relief of declaration of
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
title to the suit property and for permanent injunction. Considering the
above decisions, even assuming that the plaintiff's tracing of title, shown in
the plaint is incorrect and adduces evidence to prove the proposed tracing
of title, it is for the Court to decide as to whether the plaintiff has title to
the suit property or not and mere tracing of title wrongly in the plaint,
cannot be a ground for dismissal of the suit itself.
15.Considering the above, even assuming that the plea now
canvassed by the plaintiff is a formal defect, that may not result in
dismissal of the suit. As rightly pointed out by the learned counsel for the
respondents 1 to 3 , the suit was filed in the year 2012 and the defendants
have filed their written statement in February 2013, disputing the title and
possession claimed by the plaintiff and claiming the title and possession
with themselves.
16.It is not in dispute that after filing of the written statement, the
plaintiffs have filed their reply statement in March 2013, in response to the
contentions raised in the written statement. It is pertinent to note that the
defendants in their written statement has specifically pleaded about the sale
deed No.2445/1121 ME of Kalkulam Sub Registrar Office and tracing of
title to the suit property.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
17. It is pertinent to mention that the above petition for withdrawal
was not at all filed at the earliest point of time. As already pointed out, the
above petition came to be filed on 30.08.2019, after a lapse of 7 years from
the date of suit and after 6 years since filing of the written statement,
alleging that they came to know about the document No.2445/1121 ME,
which is the previous document referred by the defendants in their written
statement. Moreover, the above petition came to be filed only after
dismissal of the amendment petition, which was challenged and came to be
dismissed by this Court. At this juncture, it is necessary to refer the
decision of this Court in Manivannan and others Vs. P.Ambal Devi,
[CRP NPD(MD)No.4275 of 2013, dated 14.10.2014] and in a similar
situation, this Court has held as follows;
“4.7. Contending that permitting withdrawal of the suit
would amount to bypassing the order of this Court justifying
the rejection of amendment application and therefore the
withdrawal should not have been permitted, the learned
counsel for the revision petitioners, relied upon the decision
reported in 2012 (5) CTC 786 (A.Subramani v.
Rathinammal), where-under it has been held as under:-
12 ..... A mere statement by the Plaintiffs that there are
formal defects in the frame and form of Suit are not enough,
as opined by this Court. Therefore, there must be an express
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
finding by a Court of law that the Suit would fail by reason,
of some formal defect or that there are other sufficient reasons
for granting the leave to file a fresh Suit as per decision in
Lallu v. Board of Revenue, AIR 1973 Allahabad 195."
13. Further, this Court in the above decisions held that
the plaintiffs are estopped from projecting the I.A. under
Order 23 Rule 1 CPC praying for permission to withdraw the
suit and to file a fresh suit on same cause of action and what
cannot be achieved by earlier I.A. to amend the plaint, cannot
be achieved by grant of liberty to withdraw the suit to file
fresh suit on same cause of action and withdrawal of suit
cannot be allowed when defendant has acquired certain right
in subject matter of the suit.
14. In the light of the above stated position of law and
taking note of the earlier order of this Court made in C.R.P.
(PD).No.3292 of 2011, dated 6.9.2011, confirming the order
of the trial Court in I.A.No.419 of 2010 in O.S.No.23 of 2010,
dated 14.7.2011, and the present claim of the petitioner for
withdrawing the suit and to go for fresh pleadings, would
amount to recalling the earlier order of this Court and
therefore, the trial Court has rightly come to the conclusion
that it is not proper to permit the petitioners to withdraw the
present suit with permission to institute a fresh suit.
Accordingly, the view of the trial Court is in no way, in my
considered opinion, does not suffer from any infirmity or
illegality and there is no scope to interfere with the same, as
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
there is no manifest error committed by the trial Court.
4.8.This Court is of the view that this case, i.e., A.Subramani's
case, is directly applicable to the facts of the case on hand and
the permission granted by the Court to withdraw the suit
cannot be allowed to be sustained.”
18.Considering the above, it is very much clear that the above
petition for withdrawal has been filed to circumvent or bypass the order
passed by the trial Court, dismissing the application for amendment, which
was confirmed by this Court. What cannot be achieved directly cannot be
allowed to be achieved indirectly.
19.Hence, this Court has no hesitation to hold that the plaintiff has
neither shown any formal/technical defect nor any other sufficient grounds
to get the permission for withdrawal of the suit with liberty to file fresh
suit in respect of the subject matter of the present suit and as such, the
order of the learned Subordinate Judge in dismissing the petition cannot be
found fault with. Consequently, this Court concludes that the Civil
Revision is devoid of merits and the same is liable to be dismissed.
Considering the fact that the suit is pending from 2012 onwards, this Court
is of the view that necessary direction is to be issued for the earlier
disposal of the suit.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
20.In the result, the Civil Revision Petition is dismissed. The trial
Court is directed to dispose of the suit within a period of three months
from the date of receipt of copy of this order. No costs. Consequently,
connected Miscellaneous Petition is closed.
25.10.2021
Index : Yes/No
Internet : Yes/No
das
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
1.The Subordinate Court, Padmanabhapuram.
2.The Section Officer (VR Section)
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD).No.15 of 2021
K.MURALI SHANKAR, J.
das
CRP(PD)(MD).No. 15 of 2021
and
C.M.P(MD).No.138 of 2021
25.10.2021
https://www.mhc.tn.gov.in/judis
