Madras High Court
Rasool Beevi vs S.Hidayadullah on 9 February, 2023
CRP(MD)No.2625 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.2625 of 2022
and
CMP(MD)No.5448 of 2022
1.Rasool Beevi
2.Atham Mallick : Petitioners
Vs.
1.S.Hidayadullah
2.Jesudhas
3.M.Pandian
4.Samsukani
5.M.Lukman Siddiqque : Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India to call for the records relating to the fair and decreetal order dated
23.11.2022 passed by the learned Additional District Munsif, Tirumangalam, in
I.A.No.6 of 2022 in O.S.No.592 of 2012 and set aside the same.
1/6
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CRP(MD)No.2625 of 2022
For Petitioners : Mr.R.Aravindan
For Respondents : Mr.T.K.Gopalan
*****
ORDER
The petitioners, as plaintiffs, have filed a suit in O.S.No.592 of 2012 before
the Additional District Munsif Court, Tirumangalam, for declaring the suit
property as a common road and for other reliefs. Pending the suit, they moved an
interlocutory application in I.A.No.6 of 2022 under Order XXIII Rule 1(3) CPC to
withdraw the suit with liberty to file a fresh suit, in case of necessity. The trial
Court, by order dated 23.11.2022, dismissed the application with costs and
aggrieved over the same, the petitioners have moved the instant revision petition.
2.According to the petitioners, only at the end of the trial, they came to
know about the judgment passed in O.S.No.655 of 2017 on the file of the Sub
Court, Tirumangalam, instituted by the second respondent herein, wherein the very
same suit schedule property was declared as a common road. Therefore, the
petitioners sought to withdraw the present suit with liberty to file a fresh suit, in
case of necessity.
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CRP(MD)No.2625 of 2022
3.Learned Counsel for the petitioners, by relying upon the decision of this
Court in K.P.Selvah v. Atlee [2019 (5) LW 110], submitted that the liberty to file
fresh suit alone can be rejected by the trial Court and that the Court cannot reject
the request of withdrawal.
4.Order XXIII Rule 1(3) CPC reads as follows:-
“1. Withdrawal of suit or abandonment of part of claim
(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.”
5.In the decision in K.P.Selvah's case (referred supra), this Court has held
that a petition under Order XXIII Rule 1(3) CPC can be allowed on satisfaction of
either of the two sub-rules and if any of the such condition is satisfied, the Court
may grant withdrawal, but such withdrawal has to be coupled with liberty or
permission to institute a fresh suit, which means withdrawal alone cannot be
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CRP(MD)No.2625 of 2022
granted. Therefore, the argument advanced by the petitioners' Counsel based on
this decision is not acceptable. The relevant portion from the said decision is
extracted as under:-
“68. Therefore, once the Court satisfies either on the ground of
the first limb, i.e., clause (a) of sub-rule (3) or under the ingredients of
the second limb, i.e., clause (b) of sub-rule (3), the Court can permit the
plaintiff to withdraw the suit, of course with liberty to institute a fresh
suit.
69. In other words, once the Court satisfies either under clause
(a) or (b) of sub-rule (3), Court, while permitting the plaintiff to
withdraw the suit, shall also give the liberty to institute a fresh suit in
respect of the subject matter of such suit.
70. Suppose without filing an application and without getting a
liberty to file a suit as contemplated under clause (3), if the plaintiff
either abandons the suit under sub-rule (1) of Rule (1) or withdraws the
suit under sub-rule (3), the plaintiff shall, not only be liable for such
cost, as the Court may award, but also shall be precluded from
institution of any fresh suit.
71. Therefore sub-rule (3) should be read in conjunction with sub-
rule (4), where it makes mandatory that, while withdrawing the suit, the
plaintiff must get permission or liberty to file a fresh suit.
72. When such permission or liberty is sought for and Court is
satisfied under sub-rule 3(a) or 3(b) to give such permission to
withdraw, it is coupled with liberty or permission to institute a fresh
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CRP(MD)No.2625 of 2022
suit. In other words, when the Court grants permission to withdraw the
suit under Order XXIII Rule (1) (3), such permission shall go with
liberty or permission to institute a fresh suit in respect of the same
subject matter.”
6.The suit is at the final stage and after ten years of litigation, the petitioners
cannot be permitted to withdraw the suit at their will, causing prejudice to the
other side. This Court does not find any infirmity in the order of the trial Court
that warrants any interference. If the petitioners are satisfied with the earlier suit
and are inclined to abandon the present suit or their claim, they are at liberty to
invoke Order XXIII Rule 1(1) CPC.
Accordingly, this revision petition stands dismissed. No costs.
Consequently, connected miscellaneous petition stands closed.
Index : Yes / No 09.02.2023
gk
To
The Additional District Munsif,
Tirumangalam.
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CRP(MD)No.2625 of 2022
B.PUGALENDHI, J.
gk
CRP(MD)No.2625 of 2022
09.02.2023
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