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Judgment
M. Venugopal, J.—The Petitioners/Plaintiffs have focussed the present Civil Revision Petition as against the order dated 29.11.2010 in I.A.
No. 962 of 2010 in O.S. No. 145 of 2008 passed by the Learned District Munsif, Rasipuram. The Learned District Munsif, while passing the
order in I.A. No. 962 of 2010 in O.S. No. 145 of 2008 dated 29.11.2010, has, among other things, categorically observed that ''... The main suit
filed by the Petitioners (Plaintiffs) has been posted for cross examination of D.W. 1 (on behalf of Defendants Respondents side) and at that point
of time, the Petitioners have filed the petition seeking permission to withdraw the suit and although, on behalf of the Petitioners, it is pleaded that the
suit suffers from formal defect, the reliefs prayed for by the Petitioners cannot be granted to them'' and resultantly, dismissed the application without
costs.
The Learned Counsel for the Petitioners/Plaintiffs submits that the Petitioners/Plaintiffs filed the main suit O.S. No. 145 of 2008 on the file of trial
Court seeking the relief of declaration that the Sale Deed dated 02.07.2007 is not valid and also sought the relief of consequential permanent
injunction against the Respondents/Defendants.
The main contention advanced on behalf of the Petitioners/Plaintiffs is that the trial Court has failed to appreciate that the Decree in O.S. No. 92
of 2008 relied on by the Respondents/Defendants has been introduced for the first time in the proof affidavit of D.W. 1 and therefore, the
Petitioners/Plaintiffs have chosen to withdraw the suit viz., O.S. No. 145 of 2008 on the file of trial Court because of the legal impact of the
Decree dated 29.01.2010 in O.S. No. 92 of 2008 obtained by the 1st Respondent/1st Defendant.
Per contra, it is the contention of the Learned Counsel for the Respondents/Defendants that the Petitioners/Plaintiffs have sought a relief of
declaration in the main suit in O.S. No. 145 of 2008 on the file of the trial Court that the suit property is the public road and this relief cannot be
granted by the trial Court because the description of the property itself reads that the suit property is situated north of Thottiapatty road and
further, in regard to the relief prayed for by the Petitioners for cancellation of Sale Deed dated 02.07.2007 bearing Document No. 1608/2007 in
favour of the 1st Respondent/1st Defendant [obtained from one Lakshmi for Rs. 12,500/-], the Petitioners/Plaintiffs have not paid proper Court
Fee for the said relief.
That apart, the stand of the Respondents/Defendants is that the Petitioners/Plaintiffs are not the trustees of Ponkaliamman or any Mariamman
Koil situated in the village etc. Furthermore, the 1st Respondent/1st Defendant never claimed that he is going to put up construction on the land he
has purchased through the Sale Deed dated 02.07.2007. Added further, 1st Respondent/1st Defendant is not encroaching upon any land intended
for taking possession of suit deities and it is false to aver that there will not be any space to take the possession if the 1st Respondent/1st
Defendant puts up construction in his land.
Continuing further, it is the plea of Respondents/Defendants that the suit property has got market value even as per the Plaint averments made
by the Revision Petitioners/Plaintiffs and as such, the suit ought to have been valued by the Petitioners/Plaintiffs for half of the market value viz., half
of Rs. 12,500/-, and that too for two counts. To put it shortly, the Court Fees paid by the Plaintiffs is insufficient in regard to the relief sought for
by the Revision Petitioners/Plaintiffs in the main suit in O.S. No. 145 of 2008 on the file of the trial Court.
It is not in dispute that evidence on the side of the Petitioners/Plaintiffs in the main suit has been completed. As a matter of fact, the proof
affidavit of witness D.W. 1 has been filed before the trial Court and the main suit O.S. No. 145 of 2008 has been posted for cross-examination of
D.W. 1.
According to the Revision Petitioners/Plaintiffs, the 1st Respondent/1st Defendant obtained a Permanent Injunction Decree in O.S. No. 92 of
2008 against the District Collector, Namakkal and four others (on behalf of Revenue Officials) on 29.01.2010 to the effect that his possession and
enjoyment of the suit properties should not be interfered with by them without following due of process of law. In respect of ''A'' schedule property
bearing Patta No. 277 in Survey No. 23/141 0.023.5 square meters in entirety wherein a tiled house for 16 feet has been constructed bearing
Door No. 1/74 with Electricity Connection No. 695 etc. Also, in Namakkal District, Rasipuram Circle, Sowthapuram Village, the ''B'' schedule in
Survey No. 23/1A wherein the tamarind tree has been referred to the said schedule of the property.
A perusal of the Decree in O.S. No. 92 of 2008 dated 29.01.2010 obtained by the 1st Respondent/1st Defendant on the file of the Learned
District Munsif, Rasipuram shows that in the said Decree, the Revision Petitioners before this Court in C.R.P. PD. No. 2640 of 2011 [Plaintiffs in
O.S. No. 145 of 2008) on the file of trial Court are not arrayed as parties. Also, it comes to be known that the 1st Respondent/1st Defendant has
purchased the 520 sq. ft of vacant land in entirety in Sowthapuram village in this Survey No. 23/1A1 in Namakkal District through registered Sale
Deed dated 02.07.2007 for Rs. 12,500/- from one Lakshmi wife of Nesavu Muniappan.
A cursory perusal of the contents of Affidavit filed by the 1st Revision Petitioner/1st Plaintiff in I.A. No. 962 of 2010 in O.S. No. 145 of 2008
on the file of the Learned District Munsif, Rasipuram clearly shows that the Revision Petitioners/Plaintiffs have taken a stand that in respect of the
suit property in O.S. No. 145 of 2008 the 1st Respondent/1st Defendant without their knowledge have obtained a Decree from the Court,
contrary to fact by presenting revenue records and documents and the said decree in O.S. No. 92 of 2008 dated 29.01.2010 obtained by the 1st
Respondent/1st Defendant as Plaintiff, the Revision Petitioners are unable to proceed with the suit O.S. No. 145 of 2008, because of the reason
that the said revenue records have remained as primary documents for the Sale Deed obtained by the 1st Respondent/1st Defendant, who filed the
suit O.S. No. 92 of 2008 and those facts have arisen as cause of action for the present for the present suit O.S. No. 145 of 2008.
According to the Petitioners/Plaintiffs, the aforesaid facts have not been shown as cause of action for filing of the suit O.S. No. 145 of 2008 on
the file of trial Court by the Revision Petitioners/Plaintiffs and with the said format defects, the said suit has been filed. Therefore, the
Petitioners/Plaintiffs have sought permission from the trial Court under Order 23 Rule 1 (3) of CPC to withdraw the suit O.S. No. 145 of 2008
and to file a fresh suit on the same cause of action.
In the Counter filed by the 1st Respondent/1st Defendant (adopted by other Defendants/Respondents), it is clearly mentioned that there is no
formal defect in the suit except that the suit itself is the defective one and the Petitioners/Plaintiffs have filed the main suit O.S. No. 145 of 2008
based on the ground that the suit property is the Government Poramboke land and as such, they cannot be heard to say that they do not about the
revenue records. Also, there is no need of necessity for permitting the Petitioners to withdraw the suit and to grant liberty to them to file a fresh suit
on the same cause of action.
It is to be noted that when the Plaintiffs seek permission of the Court of Law to withdraw the suit filed by them, then, they owe a duty to satisfy
that the requirements of Order 23 Rule 1 (3) of CPC are satisfied. In fact, the Plaintiff must show that the requirement of Order 23 Rule 1 (3) of
CPC are fulfilled with, because of the fact that they do not have absolute right either to withdraw the suit or abandon their claim. In an application
under sub-rule (3) of Order 23, it is the duty of the Plaintiff to satisfy the Court that there exist sufficient grounds/good grounds in regard to the
withdrawal of the suit and for the grant of liberty to file a fresh suit.
This Court deems it appropriate to point out the decision in Baldeo Dass Vs. Joshi Gauri Dutt and Others, wherein, in paragraphs 5 & 6, it is
observed as follows:
The present revision application was filed by the purchaser Baldeo Dass challenging the legality of the order passed by the Court below. It is
now well settled that a Court has jurisdiction to grant permission to withdraw from a suit with liberty to bring a fresh suit under Order 23, Rule 1,
Civil P.C., only if there is a formal defector a defect of an analogous character as a result of which the suit is bound to fail. In the absence of any
such defect the Court has no authority to grant permission to withdraw a suit with liberty to bring a fresh suit: see Abdul Ghafoor Vs. Abdul
Rahman,
It was contended by the learned counsel for the petitioner that there was no defect either formal or of an analogous character in the plaint
presented to the trial Court and accordingly the learned Judge in appeal had no jurisdiction to exercise the powers conferred by Order 23, Rule 1.
It will be noted that the application for permission to withdraw from the suit with liberty to bring a fresh suit made by the applicant''s counsel was
extremely vague and indefinite. It says that ""a few material allegations of legal grounds for avoiding and setting aside the revenue Court decree have
not been specified in the plaint."" The ""allegations of the legal grounds"" referred to are not specifically mentioned. It is true that a reference was
made in this application to the previous application for amendment of the plaint which was rejected by the learned Civil Judge because it sought to
introduce ""new matter"" in the controversy. It was frankly conceded by the learned counsel for the opposite parties that the learned Judge''s view of
the matter sought to be introduced by amendment of the plaint was not wrong. Apart from the grounds which were mentioned in the plaint, it was
sought to challenge the proceedings which culminated in the sale of the leased lands on the ground of negligence of the plaintiff''s own father, Joshi
Ratan Shanker. Therefore, the learned Judge was right in rejecting the application for amendment. The application for permission to withdraw from
the suit with liberty to bring a fresh suit was only a device to introduce new matter into controversy indirectly. When the attempt to introduce that
matter directly in the controversy failed, the plaintiff''s applied for permission to withdraw the suit and introduce this matter in the fresh suit which
they intended to file. I am clear that on the finding arrived at by the learned Judge there was no defect in the plaint which was of a formal or of an
analogous character.
At this stage, this Court aptly points out the decision in Choice School and Another Vs. Salim, M.P. wherein, in paragraph 9, it is observed
and held as under:
Rule 1 of Order XXIII postulates abandonment of suit as well as withdrawal of the suit with permission of the Court to institute a fresh suit. For
abandoning a suit, the Rule does not contemplate that permission of the Court is necessary, If a suit is to be abandoned as provided in sub-rule (1)
of Rule 1 of Order XXIII, there is no question of granting permission to institute a fresh suit. Abandonment is the complete relinquishment of the
right of the plaintiff to continue to prosecute the suit. When the plaintiff does not wish to prosecute the suit, he is free to abandon the suit. In such
cases, the Court cannot grant permission to institute a fresh suit. On the other hand, if the court is satisfied that any of the two ingredients of the
sub-rule (3) of Rule 1 is attracted and the plaintiff wants to withdraw from the suit, the court may grant permission to withdraw the suit with liberty
to institute a fresh suit in respect of the subject matter of the suit. For abandoning the suit, the plaintiff need not establish the ingredients as provided
in sub-rule (3).
It is not out of place for this Court to cite the following decisions in the interest of justice:
(a) In the decision in Kaloot Sao and Another Vs. Mostt. (name not Known) and Others, it is held as follows:
The words ""subject matter"" appearing in O.23 R. 1 of the Civil P.C. cannot be equated with the property in respect of which the parties quarrel. It
includes the cause of action also. It, therefore, follows that unless the cause of action for the two suits is the same, the bar of Order XXIII Rule
1(3) of the Code cannot be applied. Where in a suit the cause of action is the service of notice u/s 106 of the Transfer of Property Act which was
not served before the filing of earlier suit which is withdrawn it cannot be said that the cause of action of the two suits is common. The subsequent
suit cannot be barred under O.23 R. 1. Vallabh Das Vs. Madan Lal and Others, Rel. on.
(b) In the decision Mahadeoji Chandreswarji Vs. State of Rajasthan and Others, it is laid down as follows:
The legal position can be summarised that the provisions of Order 23, Rule 1 of the Code are based on public policy not to give an opportunity to
a litigant to abuse the process of the Court. However, in certain circumstances, he can be permitted to withdraw the suit with liberty to file a fresh,
only in case he shows the ""sufficient grounds"" as mentioned in Clause (a) or (b) of Sub-rule (3) of Rule 1 of Order 23. The suit can be withdrawn
even at the appellate stage but it is not permissible for a litigant to defeat the accrued right of the other party by withdrawing the suit. The Court has
been conferred discretion to permit a litigant to withdraw the suit only if ""sufficient ground is shown warranting such a permission.
(c) In the decision Neelakanta Pillai Bhargava Panicker and Another Vs. Madhavakurup Dasappan Pillai and Another, it is held as follows:
A suit in respect of the subject matter which is unconnected with that of the suit sought to be withdrawn cannot be instituted under the guise of a
permission granted under sub-rule (3). In other words, no such permission can be granted if the suit sought to be instituted is in respect of a
different subject matter. The subject matter mentioned in sub-rule (3) of Rule 1, evidently includes the cause of action as well. The object of sub-
rule (3) of Rule 1 is to prevent multiplicity of proceedings and to avoid dismissal of a claim on the ground of an objection regarding formal defect or
any other ground which affects the maintainability of the suit. Sub-rule (3) is not intended for permitting a plaintiff to withdraw one suit and institute
any suit as he likes. The Rule is intended only to facilitate a proper and effective adjudication of the dispute involved in respect of the subject matter
of the suit. A cause of action which is different from the one which was put forward originally, if allowed to be the foundation for the suit to be
instituted after withdrawal of the first suit, it would result in unending process. The decision of the Supreme Court in K.S. Bhoopathy''s case
(supra) clearly indicates that the fresh suit should be in respect of the same claim or part of the claim on the same cause of action. In the present
case, a fresh suit is sought to be instituted on the basis of a claim which was not put forward originally in the plaint. The plaintiffs want to change
their claim on the basis of a different claim for an additional extent of land, which, according to them, is to be shared by all the purchasers. Such a
case is not pleaded at all in the suit originally instituted. In the suit as originally instituted, the dispute is in respect of the title of the plaintiffs over a
small extent of land, If the plaintiffs are allowed to institute a fresh suit on the basis of the additional extent of land claimed to be available and to be
shared equally by the three assignees, it would definitely alter the nature and character of the suit. It would also have the effect of allowing the
plaintiffs to institute a fresh suit on a different cause of action. Moreover plaintiffs, against whom certain findings were already rendered in the
appeal while remanding the case to the trial court, could be allowed to get out of those findings under the guise of withdrawing from the suit with
permission to institute a fresh suit.
It is to be borne in mind that if the suit is at preliminary stage and issues are not framed and if the pleadings suffer from numerous defects, a
Court of Law would allow a Plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action, of course, based on the facts
and circumstances of a given case.
The words ''sufficient grounds'' under Order 23 Rule 1(3) of CPC would encompass may facets such as genuineness of grounds set forth in the
petition, prayer of the suit, the prejudice likely to be caused to the other side and other incidental, relevant and other necessary concomitant
factors.
Ordinarily, a Court of Law is to exercise its discretionary power under Order 23 Rule 1 subject to the conditions specified therein by
exercising the same with great care and caution and also after taking into all attendant and relevant aspects of the matter including the desirability of
allowing a litigant to commence a fresh bout of litigation on the same cause of action, in the considered opinion of this Court.
Although, it may be the prerogative of the Plaintiff to withdraw or abandon either the entire suit claim or part claim at any time after filing of the
suit, yet, the said liberty/right is not absolute so as to provide lever in permitting him or ratifying an abuse of process of Court. Also, a person who
has filed his written statement cannot be deprived of his right to insist upon for payment of costs or even to take a plea that in consequence of such
giving up or withdrawal or abandoning, the suit itself would be rendered an otiose one.
If a party wants to file a suit on the basis of a cause of action, different from the previous suit, the question of seeking permission of the Court in
this regard does not arise on any score, as opined by this Court. The fact that a Plaintiff is entitled to either withdraw the suit or abandon the suit in
entirety or part of the claim by itself is no licence for him to claim a right to do so, as against the genuine and legitimate rights of the Defendant''s
back and with an ulterior object.
To put it succinctly, a right of Plaintiff to withdraw or abandon the suit at his will is subject to few limitations/restrictions based on the principle
that if third party has acquired a valuable right, there is no room for withdrawal to his prejudice/against his interest.
It is evident that the Sale Deed dated 02.07.2007 in favour of the 1st Respondent/1st Defendant obtained from one Lakshmi is the obvious,
prime cause of action which has necessitated the Petitioners/Plaintiffs to file a suit on the file of trial Court seeking the relief of declaration that it is
invalid, although the relief of declaration in respect of suit property as common role and also the relief of injunction has been sought for against the
Respondents. Therefore, it cannot be said that the filing of the suit O.S. No. 145 of 2008 on the file of trial Court is the cementing platform for a
purported cause of action in the present case. It is always open to the Petitioners/Plaintiffs in O.S. No. 145 of 2008 to take a plea that the Decree
obtained by the 1st Respondent/1st Defendant in O.S. No. 92 of 2008 on the file of trial Court is not binding either on him or other Defendants
inasmuch as they are not parties to the said suit. Moreover, the Decree obtained in O.S. No. 92 of 2008 dated 29.01.2010 by the 1st
Respondent/1st Defendant is not a ''Judgment in rem''. Therefore, it cannot be said by any means that the non-mentioning of the Decree obtained
by the 1st Respondent/1st Defendant in O.S. No. 92 of 2008 is a formal defect. It is always open to the Petitioners/Plaintiffs to proceed with the
suit in O.S. No. 145 of 2008 as it is (if he so desires/advised), in the considered opinion of this Court.
Looking at from any angle and also going through the order passed by the trial Court in I.A. No. 962 of 2010 in O.S. No. 145 of 2008 dated
29.11.2010, this Court comes to an inevitable conclusion that the trial Court has rightly dismissed the I.A. No. 962 of 2010, by not granting
permission to the Revision Petitioners/Plaintiffs to withdraw the suit O.S. No. 145 of 2008 on its file because of the fact that already proof affidavit
of D.W. 1 has been filed and the stage has been set for his cross-examination. In short, there is no jurisdictional error or material irregularity or
even patent illegality committed by the trial Court in dismissing the I.A. No. 962 of 2010 in O.S. No. 145 of 2008 through its order dated
29.11.2010. Consequently, the Revision Petition fails. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own
costs. The order passed by the trial Court in I.A. No. 962 of 2010 in O.S. No. 145 of 2008 dated 29.11.2010 is confirmed by this Court for the
reasons assigned in this Revision. Consequently, connected Miscellaneous Petition is also dismissed.