Telangana High Court

Vls Prasad vs M/S. Strips India on 2 September, 2024

      THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI


          CIVIL REVISION PETITION NO.1131 OF 2024

                               ORDER

This Civil Revision Petition (CRP) is filed against the order

dt.04.12.2023 in I.A.No.853 of 2023 in O.S.No.56 of 2022 on the file of

the III Additional Sessions Judge, Sanga Reddy.

2. The petitioner is the defendant No.1 in the suit filed by

respondent No.1 herein. The suit was filed for permanent injunction

against the defendants therein who are 8 in number. The suit was filed

on 24.03.2022 and defendant No.1 has filed his written statement on

08.06.2022. The other defendants, i.e., defendants 2 to 8 also filed their

written statement collectively on 08.06.2022. In the written statement,

defendant No.1 has taken the objection about the title as well as

possession of the plaintiff over the suit schedule property. Along with

the suit, the plaintiff had filed I.A.No.161 of 2022 for interim injunction.

Defendant No.1 had filed his counter to the I.A. also raising objections

with regard to the title and the possession over the suit schedule property

and the boundaries mentioned of the suit schedule property.

Respondents 2 to 8 have also filed their counter affidavit and it is

thereafter and after hearing all the parties that the petition for interim

injunction was dismissed vide orders dt.29.08.2022.

3. Thereafter, the plaintiff has filed I.A.No.9 of 2023 on 04.01.2023

seeking permission to withdraw the suit in O.S.No.56 of 2022 reserving

its right to file a separate suit seeking declaration of title over the suit

schedule property and permanent injunction. Defendant No.1 filed his

counter affidavit submitting that the plaintiff did not have any title to the

property and therefore, it cannot file any suit for title and possession and

that such a suit would be barred by limitation and further, that the

plaintiff is abusing the process of Court by indulging in frivolous

litigation and is compelling the defendants to incur huge amount

towards litigation expenses. It was submitted that the plaintiff is

intending to withdraw the suit after the defendants have filed their

counter affidavit and have revealed their defence and therefore, though

the plaintiff can be allowed to withdraw the suit, no liberty should be

granted to the plaintiff to file a fresh suit based on the same cause of

action. After hearing both the parties, vide orders dt.06.03.2023, the

petition filed by the plaintiff for withdrawal of the suit with liberty to

file a fresh suit was dismissed by observing that the plaintiff is having

opportunity of amending the existing plaint seeking the relief of

declaration of title and it cannot be said that there is any formal defect in

the existing plaint entailing dismissal of the suit and therefore, the

plaintiff cannot be permitted to withdraw the suit with liberty to file

fresh suit on the same cause of action. It was observed that the plaintiff

could not specify the formal defect which is likely to lead to dismissal of

the suit nor were any other sufficient grounds made out by it for

permitting it to institute a fresh suit in respect of the same subject

matter, particularly when it is having opportunity of seeking amendment

of the existing plaint. The Court has also taken note of the fact that

I.A.No.161 of 2022 in O.S.No.56 of 2022 seeking interim injunction

against the defendants over the suit schedule property was dismissed by

the Court on 28.09.2022 and the appeal filed by the plaintiff before the

High Court for the State of Telangana is still pending and during the

pendency of such an appeal, the plaintiff is seeking withdrawal of the

said suit. Thus, leave under Order 23 Rule 1(3) of CPC was not granted.

C.M.A.No.596 of 2022 filed against the order in I.A.No.161 of 2022

was also withdrawn by the plaintiff vide judgment dt.01.03.2024.

4. Thereafter, on 12.09.2023, the plaintiff has filed I.A.No.853 of

2023 in O.S.No.56 of 2022 seeking permission to withdraw the suit and

file fresh suit for declaration of title and possession stating that while

passing orders in I.A.No.161 of 2022, the Court has observed that there

is serious dispute of title of the plaintiff over the suit schedule property

and that the petition for withdrawal of the suit with liberty to file a fresh

suit in I.A.No.9 of 2023 was also dismissed with the observation that the

plaintiff could have amended the plaint seeking declaration of title

instead of filing a fresh suit on the same cause of action, but thereafter

on 26.08.2023, i.e., after dismissal of the I.A., the 1st defendant has

brought into existence a false registered sale deed Document No.452 of

2023 dt.10.07.2023 in the name of one Nayan Gupta, S/o Neeraj Kumar

Gupta pending suit and therefore, it became necessary to seek

declaration of title over the suit land. He also referred to the written

statement filed by defendant No.1 that defendant No.1 has claimed to

have obtained the sale deed from Venkat Sridhar Nayak in the year 2003

and that the same was ratified by Dhanunjay Sridhar Nayak in the year

2018 and that defendant No.1 earlier filed O.S.No.83 of 2006 on the file

of the District Judge at Sangareddy seeking declaration of title in respect

of the suit schedule property under a sale deed said to have been

obtained by him from the sons of Badai Laxmikantham and in the said

suit, the petitioner/plaintiff in O.S.No.56 of 2022 has filed written

statement and claimed title over the entire Survey No.188 Extent

Ac.7.24 guntas, but that the defendant No.1 in O.S.No.56 of 2022 did

not produce the alleged sale deed Document No.7829 of 2003

dt.28.08.2003 said to have been obtained by him from Venkat Sridhar

Nayak as Sridhar Venkat Nayak. It is submitted that as defendant No.1

was trying to blow hot and cold by making inconsistent pleadings and

bringing new documents in the suit and therefore, the plaintiff cannot

amend the plaint in O.S.No.56 of 2022 as several averments have to be

amended which may change the very structure of the suit. Stating that

defendant No.1 has brought a fresh cause of action for the plaintiff to

file a fresh suit, he prayed for permission to withdraw the suit with

liberty to file a fresh suit on the cause of action available to him.

5. Defendant No.1/respondent No.1 to the I.A.No.853 of 2023 has

filed a counter affidavit stating that earlier application filed by the

plaintiff in I.A.No.9 of 2023 with identical prayer was dismissed on

merits on 06.03.2023 and on the very same grounds, except for the one

sentence in respect of Document No.452 of 2023 dt.10.07.2023, no

other grounds are raised in the petition and therefore, I.A.No.853 of

2023 is not maintainable. The respondent No.1 therein has filed a

detailed counter affidavit giving detailed history of the case and as to

how the second application for the very same relief sought for in

I.A.No.9 of 2023 is not maintainable. Similarly, counter affidavit was

filed by respondents 2 to 8 therein as well. The trial Court, vide orders

dt.04.12.2023 has allowed the said petition by observing that during

pendency of the suit, the 1st respondent had allegedly executed a

registered document in favour of an intending purchaser and as a sine

qua non, a fresh cause of action arose to him and that merely by change

of pleadings in the plaint and prayer portion, it will not rectify the defect

but it will enlarge the scope of the suit and prolong the litigation due to

multiplicity of proceedings. Therefore, the petitioner was permitted to

withdraw the suit and file fresh suit on fresh cause of action available to

him and for coming to this conclusion, the trial Court relied upon the

decision of the Hon'ble Apex Court in the case of K.S.Bhoopathy Vs.

Kokila 1. Challenging the same, the present CRP is filed by the

defendant No.1 in the suit.

6. Learned counsel for the petitioner, while reiterating the grounds

raised in the CRP, submitted that for the very same relief, two

applications cannot be filed, i.e., I.A.No.9 of 2023 and I.A.No.853 of

2023 for withdrawal of the suit O.S.No.56 of 2022 with liberty to file a

fresh suit. It is submitted that the only changed circumstance after

(2000) 5 SCC 458

dismissal of I.A.No.9 of 2023 is that the defendant No.1 has executed a

sale deed in favour of one Nayan Gupta. It is submitted that the principle

of lis pendens would be applicable in this case and the vendee of the

defendant No.1 would only step into the shoes of the defendant No.1

and there was no fresh cause of action for filing the suit for declaration

of title afresh. It is submitted that the trial Court has misplaced its

reliance upon the decision of the Hon'ble Apex Court in the case of

K.S.Bhoopathy Vs. Kokila (1 supra) as the said judgment is in fact in

favour of the revision petitioner. He submitted that before entertaining

the application for withdrawal of the suit, the Court should be satisfied

about the existence and fulfillment of the conditions prescribed under

Order 23 Rule 1(3) of CPC and since the said conditions are not

satisfied in this case and by following the principle of res judicata,

I.A.No.853 of 2023 should have been dismissed. It is submitted that

though I.A.No.9 of 2023 was dismissed on 06.03.2023, the plaintiff did

not take any steps to amend the plaint, whereas the registered sale deed

Document No.452 of 2023 has been executed on 10.07.2023 and the

plaintiff has filed the petition under Order 23 Rule 1 of CPC on

12.09.2023 which shows that the plaintiff was not interested to amend

the prayer but was waiting for an opportunity to file a fresh application

under Order 23 Rule 1 of CPC. It is submitted that since the defendants

have already filed their written statements and have revealed their

defence, allowing the plaintiff to withdraw the suit with liberty to file a

fresh suit on the same or fresh cause of action would not only be

contrary to the settled principles of law, but would also cause prejudice

to the interests of the defendants. The learned counsel for the revision

petitioner placed reliance upon the following decisions in support of his

contentions.

(1) Maryteacher Vs. K.J. Varghese 2.

(2) K.S. Bhoopathy and others Vs. Kokila and others 3.

7. The learned Senior Counsel appearing for the 1st respondent/

plaintiff, on the other hand, supported the impugned order and submitted

that since fresh cause of action has arisen after dismissal of I.A.No.9 of

2023, the plaintiff has filed the application and after due consideration

of the contentions of both the parties, the trial Court has allowed the

same. He has also tried to demonstrate as to how no prejudice would be

caused to the defendants by the filing of the fresh suit by the plaintif. He

2017 SCC OnLine Ker 605

(2000) 5 SCC 458

placed reliance upon the following judgment in support of his

contentions.

(1) V. Rajendran and another Vs. Annasamy Pandian (D)

through LRs Karthyayani Natchiar 4.

8. Having regard to the rival contentions and the material on record,

this Court finds that there was litigation between the parties in respect of

the suit schedule property by filing suits O.S.No.56 of 2022 and

O.S.No.83 of 2006. Defendant No.1 in O.S.No.56 of 2022 in the written

statement filed by him has admittedly taken a ground about non-

availability of title over the plaint schedule property. Therefore, when

the plaintiff had filed a suit in O.S.No.56 of 2022, it was aware of the

dispute of title over the suit schedule property, but for reasons best

known to it, it has not filed the suit for declaration of title and has filed

the suit for mere permanent injunction. It is only after the written

statements have been filed by the defendants that the application has

been filed for withdrawal of the suit with liberty to file a fresh suit. The

trial court has considered all the circumstances extensively in I.A.No.9

of 2023 and has dismissed the same. The only changed circumstance

2017 LawSuit(SC) 56

which, according to the plaintiff, has necessitated filing of the second

application under Order 23 Rule 1 of CPC in I.A.No.853 of 2023, is the

alienation made by defendant No.1 in favour of one Nayan Gupta. This

transaction would be covered by the principle of lis pendens or pendent

lite alienation. It is settled principle that during the pendency of

litigation, if any alienation is made, it would be subject to the result of

the suit. Therefore, there is no fresh cause of action which also permits

the plaintiff to seek withdrawal of the suit. There are no changed

circumstances to raise any fresh cause of action and the plaintiff is not

entitled to seek the very same relief which has become final in I.A.No.9

of 2023. The plaintiff has not chosen to challenge the said order and

therefore, it has become final and the judgments relied upon by the

learned counsel for the revision petitioner support the contention of the

revision petitioner that during the pendency of the suit and after the

written statements have been filed by the defendants, the suit cannot be

permitted to be withdrawn with liberty to file a fresh suit. The relevant

paragraphs of the case law are reproduced hereunder.

(i) In the case of Maryteacher Vs. K.J. Varghese (2 supra), it

was held as under:

"6. Then the question is what should be the approach of the court in dealing with an application for withdrawal of suit. There is lot of difference in the legal position applicable to withdrawal of suit at the pre-decree stage and post-decree stage. At the pre-decree stage the plaintiffs are at liberty to withdraw the suit or abandon the suit either partly or in whole except in a suit which would fall under either Order I Rule 8 CPC or Order XXXII Rules 1 to 14 CPC and the court has nothing to do with that liberty vested with the plaintiffs. But, at the post-decree stage it is fully and completely resting on the legal principles and it cannot be granted on mere asking as in the case of pre-decree stage. At the pre-decree stage, even the permission of the court is not required except in cases which would fall under Order I Rule 8 CPC or Order XXXII Rules 1 to 14 CPC, but the plaintiffs are bound by the limitation embodied under Order XXIII in bringing another suit in respect of the same subject matter. There are restrictions imposed under Order I Rule 8(4) CPC in a representative suit and under the proviso to Order XXIII Rue 1 CPC with respect to suits which would fall under Order XXXII Rules 1 to 14 CPC. But, at the post-decree stage the plaintiffs cannot unilaterally withdraw the suit without the permission of the court after suffering a decree. The normal rule is that after suffering a decree the plaintiffs cannot be permitted to withdraw the suit unless there is jurisdictional error or lack of jurisdiction and that the suit ended in dismissal on any of the said ground. Only in case of jurisdictional error and lack of jurisdiction resulting in dismissal of suit, a permission can be granted to withdraw the suit at the post-decree stage. Order XXIII CPC did not make any difference in the approach of court in the matter of withdrawal of suit at the post-decree stage and pre-decree stage. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court, but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the

matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied 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. But, the question of withdrawal at the post-

decree stage is fully and completely resting on the legal principles and not confined only to the mandate under Order XXIII CPC, but really restricts its application at the post-decree stage. The grounds which were available at the post-decree stage hence further stood as restricted by the application of legal principles embodied under Section 11 CPC and Order II Rule 2 CPC. The plaintiffs cannot be permitted to nullify a decree suffered by them by their actions. The only exception to the said general rule is the dismissal of the suit on the ground of lack of jurisdiction or jurisdictional error.

8. The order passed by the lower court in I.A. No. 1376/2000 and consequential disposal of the appeal based on the order passed in the said I.A. permitting the plaintiffs to withdraw the suit are liable to be interfered with and I do so. Both the order of the lower court in I.A. No. 1376/2000 and consequential order passed in the appeal permitting withdrawal are hereby set aside. Appeal is restored to the file. Parties shall appear before the first appellate court on 02.03.2017. The first appellate court shall proceed with the matter and dispose of the same in accordance with the law in force. No order as to costs."

(ii) In the case of K.S. Bhoopathy and others Vs. Kokila and

others (3 supra), the Hon'ble Supreme Court held as under:

"13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an

application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict

compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases.

14. In Bakhtawar Singh v. Sada Kaur [(1996) 11 SCC 167] the question of grant of permission under clause (3) of Order XXIII Rule 1 CPC was considered wherein it was held: (SCC Headnote) "In the present case all the courts below including the High Court concurrently found that the plaintiff-appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject-matter. The plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiff-appellants in accordance with the provisions of clause (3) of Order 23 Rule 1 of the Code."

15. Recently in the case of Executive Officer, Arthanareswarar Temple v. R. Sathyamoorthy [(1999) 3 SCC 115] this Court restated

the general principles for dealing with the applications under Order XXIII Rule 1 CPC in the following words: (SCC Headnote) "Various High Courts have rightly held, while dealing with applications under Order 23 Rule 1 CPC, that if an appeal was preferred by an unsuccessful plaintiff against the judgment of the trial court dismissing the suit and if the appellant-plaintiff wanted to withdraw not only the appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the suit was concerned, can be granted if there was no question of any adjudication on merits in favour of the defendants by the trial being nullified by such withdrawal. On the other hand, if any such findings by the trial court in favour of the defendant would get nullified, such permission for withdrawal of the suit should not be granted."

16. The question for consideration in the present case is whether the High Court has exercised the discretion vested under Order XXIII Rule 1(3) CPC on consideration of matters relevant for exercise of such power. On perusal of the impugned order it is clear to us that the learned Judge has not considered the matter in its proper perspective while allowing the prayer of the plaintiff for permission to withdraw the suit with leave to file a fresh suit. The order is vitiated on account of non-application of mind to the relevant aspects of the matter. This position is clear from some observations in the impugned order which are extracted hereinbelow:

"But, one fact-situation has to be remembered in this case, viz., that it was the appellants who succeeded in the trial court in obtaining a decree and in the appeal against such decree by the respondents, which was partly allowed, the appellate court found that the pathway was common to both the parties, but the right was not gone into, title was not determined, in such a situation withdrawal of the suit at the

appellate stage although it may amount to withdrawal or nullification of the appellate court's order, still did not hurt any party other than the withdrawing plaintiffs, because they are also having the right to use the common pathway and the decree preventing installation of the machinery is nullified. Therefore, the contention that withdrawal will prejudice the respondents, has no basis. The apprehended prejudice can be safeguarded by keeping the right to use the pathway by both the parties till the disposal of the suit.

... In view of this settled position, it is appropriate to permit withdrawal of the suit with a liberty to file a fresh suit for declaration of title which they ought to have done at the initial stage. By withdrawal, the respondents should not be deprived of the benefit of usage of that passage till the final adjudication. If there are valid defences, they can raise all such defences."

17. From the above it appears that the approach of the High Court was that the plaintiff should have prayed for declaration of title which they had omitted to include in the plaint. It was for the plaintiffs to frame their suit in any form as advised. If they felt that there was a cause of action for declaration of their title to the suit property they could have made a prayer in that regard. If they felt that a declaration of their right to exclusive user of the pathway was necessary they should have framed the suit accordingly. On the other hand the plaintiffs merely sought a decree of injunction permanently restraining the defendants from disturbing their right of user of the property. From the facts and circumstances of the case as emanating from the judgments of the trial court and the first appellate court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate court they took recourse to Order XXIII Rule 1(3) CPC and filed the application for withdrawal of the

suit with leave to file a fresh suit. The High Court does not appear to have considered the relevant aspects of the matter. Its approach appears to have been that since the interest of the defendants can be safeguarded by giving them permission for user of the pathway till adjudication of the controversy in the fresh suit to be filed, permission for withdrawal of the suit as prayed for can be granted. Such an approach is clearly erroneous. It is the duty of the court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at the appellate or second appellate stage prejudice to the defendant is writ large as he loses the benefit of the decision in his favour in the lower court.

18. For the reasons discussed in the foregoing paragraphs we have no hesitation to hold that the impugned order is unsustainable. Accordingly the appeal is allowed with costs. The order of the High Court dated 21-8-1998 granting permission for withdrawal of the suit with permission to file a fresh suit is set aside. The High Court will now proceed to dispose of the second appeal in accordance with law."

(iii) In the case of V. Rajendran and another Vs. Annasamy

Pandian (D) through LRs Karthyayani Natchiar (4 supra), the

Hon'ble Supreme Court held as under:

"9. Order XXIII Rule 1(3) CPC lays down following grounds on which a Court may allow withdrawal of suit. It reads as under:

R.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.

As per Order XXIII Rule 1(3) CPC, suit may only be withdrawn with permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order XXIII Rule 1 (3) (a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order XXIII Rule 1 (3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses (a) or (b) that is, existence of a "formal defect" or "sufficient grounds". The principle under Order XXIII Rule 1 (3) CPC is founded on public policy to prevent institution of suit again and again on the same cause of action.

10. In K.S.Bhoopathy and Ors. Vs. Kokila and Ors (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 XXIII 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, mis- joinder of parties, failure to disclose a cause of 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 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 contemplated under clause (b) that is "sufficient grounds".

12. In the present case, the appellants have filed the suit describing the suit property as Survey No.192/9 but the respondents are said to have transferred the patta for the suit property settling as Survey No.192/14. 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" within the meaning of Order XXIII 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.192/14. We are convinced that the case of the appellants would fall under clause (a) of Rule 1(3) CPC.

13. In the facts and circumstance 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 suit 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 District Munsif and the same is numbered as O.S. No.11/2015. The High Court while passing the order on 09.03.2015 does not seem to have kept in view the said suit filed by the appellants. In the facts and circumstance of the case, the impugned order passed by the High Court cannot be sustained."

9. The judgments relied upon by the learned counsel for the plaintiff

are distinguishable on facts. In fact, in the case of K.S.Bhoopathy Vs.

Kokila (1 supra) relied upon by the trial Court to grant relief to the

plaintiff, the decision is in favour of the defendant No.1. Therefore, it

appears that the trial Court has misplaced its reliance upon the said

decision to grant relief to the plaintiff.

10. With these observations, the CRP is allowed and the trial Court is

directed to proceed with the trial of the suit in O.S.No.56 of 2022. It is

worthwhile to mention here that subsequent to the order in I.A.No.853

of 2023, the plaintiff has filed a fresh suit in O.S.No.218 of 2023. In

view of the order in this CRP, the said suit in O.S.No.218 of 2023 would

have to be dismissed as not maintainable.