Madras High Court
Sundaram(Died) vs Periyammal on 23 January, 2023
CRP.No.2927 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.01.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.2927 of 2014
and MP.No.1 of 2014
1.Sundaram(died)
2.Mathuram
3.Venkatesan
4.Thirumugam
(petitioners 2 to 4 brought on record as LR's
of the deceased sole petitioner viz., Sundaram
vide court order dated 21.03.2022 in
CMP.No.3541 of 2018 in CRP.No.2927 of 2014) ... petitioners
Vs.
1.Periyammal
2.Muthusamy ... Respondents
PRAYER:
Civil Revision Petition filed under Article 227 of the Constitution of India to
set aside the fair and decretal of the Subordinate Judge's Court at Perambalur dated
18.03.2014 in IA.No.56 of 2013 in AS.No.17 of 2012.
For Petitioners : Mr.Deeraj
for Mr.S.M.S.Shriram Narayanan
For Respondents
For R1 : Mr.C.Prabakaran
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CRP.No.2927 of 2014
ORDER
This civil revision petition has been filed to set aside the fair and
decretal of the Subordinate Judge's Court at Perambalur dated 18.03.2014 in
IA.No.56 of 2013 in AS.No.17 of 2012, thereby dismissed the application filed
under Order XXIII Rule (1) 3 r/w Section 151 of CPC seeking permission to
withdraw the appeal suit with liberty to file a fresh suit on the same cause of action.
2. The first petitioner was the sole plaintiff and the respondents are the
defendants. The first petitioner filed suit for declaration, permanent injunction and
mandatory injunction in respect of the suit property. While pending the suit, the
first petitioner filed application seeking appointment of advocate commissioner to
note down the physical features of the suit property and the same was allowed.
Accordingly, the Advocate Commissioner inspected the property and filed his
report. On receipt of the Advocate Commissioner's report, the first petitioner filed
application seeking amendment of plaint under Order VI Rule 17 of CPC pertaining
to the measurement of the cart track. It was allowed and aggrieved by the same, the
respondents preferred a civil revision petition before this Court in CRP.No.2558 of
2011. It was allowed by this Court by order dated 08.09.2011 for the reason that it
would affect the rights of the respondents herein. Thereafter, the suit was dismissed
by the trial court. Aggrieved by the same, the first petitioner preferred an appeal
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CRP.No.2927 of 2014
suit in AS.No.17 of 2012. While pending the appeal suit, the petitioner filed
application under Order XXIII Rule (1) (3) r/w Section 151 of CPC seeking
permission to withdraw the appeal with liberty to file a fresh suit on the same cause
of action and the same was also dismissed. Aggrieved by the same, the present civil
revision petition has been filed.
3. The learned counsel for the petitioners mainly contended that the
provision under Order XXIII Rule 1 of CPC clearly permits the party to withdraw
the suit with liberty to file a fresh suit in case the suit suffers from formal defects.
While pending the suit, the Advocate Commissioner noted the correct measurement
of the cart track and as such, the petitioner was constrained to file an application
seeking amendment of the extent of the cart track. It was negatived by this Court.
He further contended that if any suit suffers by any formal defect, the person can be
permitted to file a fresh suit on the same cause of action. It does not operate as a
bar to seek withdrawal of the suit with liberty to file a fresh suit on the same cause
of action inasmuch as refusal of amendment implies that the party seeking such
amendment is not entitled to amend in that suit and withdrawal of the suit with
liberty to file a fresh suit on the same cause of action, stands on an entirely
different footing. In support of his contention, he also relied upon the judgment of
the Hon'ble Supreme Court of India in the case of V.Rajendran and Ors. Vs.
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CRP.No.2927 of 2014
Annasamy Pandian(D) thr. Lrs. Karthyayani Natchiar reported in
MANU/SC/0094/2017, in which the Hon'ble Supreme Court of India held that 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. The defect in the
survey 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'. He also relied upon the judgment of this Court in the case of
Ameena Bi and Ors. Vs. Ameer Bi and Ors reported in MANU/TN/1022/1997, in
which this Court held that an appeal is a continuation of the suit and the appellate
court is also competent to grant permission to withdraw the suit.
4. Heard, the learned counsel for the petitioners and the learned counsel
for the first respondent.
5. The petitioner has no right to withdraw the suit where the rights of the
parties with regard to any of the matters in controversy in the suit has been finally
decided. The suit has been dismissed by the trial court and certain rights have been
vested in the party in whose favour a decision is made. It conclusively determines
the rights of the parties with regard to all or any of the matter in controversy in the
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CRP.No.2927 of 2014
suit and therefore, at the stage of appeal, though it may be a continuation of
proceedings, the petitioners have no absolute right to withdraw the suit. If an appeal
was preferred by an unsuccessful plaintiff against the judgment dismissing the suit
and if the petitioners wanted to withdraw not only the appeal, but also the suit
unconditionally, then such permission insofar as the withdrawal of the suit can be
granted, if there is no question of any adjudication on merits, in favour of the
defendants by the trial court being nullified by such withdrawal. The mere general
statement that there is a formal defect in the description of the suit schedule
property is not sufficient to attract the said word of defect. The application to
withdraw the suit at the stage of appeal on the ground of defect in the description of
the suit schedule property will nullify the entire judgment and decree passed by the
trial court based on the oral and documentary evidence. Therefore, it would also
amount to setting aside the order passed by this Court in CRP.No.2558 of 2011,
wherein the amendment application was dismissed by this Court.
6. Therefore, the first appellate court rightly dismissed the application
and this Court finds no infirmity or illegality in the order passed by the first
appellate court. Accordingly, this civil revision petition is dismissed. The appeal is
of the year 2012. As such, the first appellate court is directed to dispose of the
appeal in AS.No.17 of 2012 within a period of three months from the date of
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CRP.No.2927 of 2014
receipt of a copy of this order, if not already disposed of. Consequently, connected
miscellaneous petition is closed. There shall be no order as to costs.
23.01.2023
Speaking/non-speaking
Index : Yes/No
Internet : Yes
lok
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CRP.No.2927 of 2014
G.K.ILANTHIRAIYAN, J.
lok
To
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CRP.No.2927 of 2014
The Subordinate Judge's Court at Perambalur
CRP.No.2927 of 2014
23.01.2023
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