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Judgment
V. Kanagaraj, J.—The above civil revision petition is directed against the fair and decretal order dated 22.3.1999 made in I.A. No. 69 of
1999 in O.S. No. 11 of 1994 by the Court of Additional District Munsif, Sivagangai.
To trace the facts of the case, regarding the suit properties, the petitioner herein had filed a suit in O.S. No. 11 of 1994 before the Court of
Additional District Munsif, Sivagangai praying for declaration of his possessory rights and permanent injunction and the said suit having been
dismissed after full trial, he preferred an appeal in A.S. No. 37 of 1998 before the Court of District Judge, Sivagangai and the said appellate court
by judgment dated 15.9.1998 besides setting aside the judgment and decree passed by the trial court dated 18.12.1997, remanded the matter to
the trial court for fresh trial to be held and the same was pending before the trial court. At this stage, an application in I.A. No. 457 of 1998 had
been filed on the part of the petitioner for the appointment of a Commission to inspect the suit locality to ascertain that the petitioner was in
possession and enjoyment of the suit property along with some other properties and the commission having been appointed, on inspection made,
the learned Commissioner had also filed his report in the Court.
The petitioner would further submit that on the part of the defendants also, they are contending that the suit property is a common property thus
claiming title to the suit property and hence whatever be the position of title to the suit property, since the petitioner is in continuous possession and
enjoyment of the same for over the statutory period, necessity has arisen in the suit to get a declaration that the petitioner is entitled to the suit
properties by means of adverse possession. But, on the contrary, the suit has been filed only for declaration of his possessory right and injunction
and in these circumstances, since the defendants have a right to ask for the dismissal of the suit based on such altered plea, necessarily the
petitioner has to withdraw the suit but with liberty to file a fresh suit in its place on the same cause of action for a modified relief and hence the
petitioner has filed the petition in I.A. No. 69 of 1999 before the Court below praying to permit him to withdraw the suit but with liberty to file a
fresh suit on the same cause of action.
In the counter filed on the part of the defendants, they would allege that the suit filed by the petitioner having already been dismissed, an appeal
had been preferred and it was argued in the appeal that the trial court should have appointed a Commissioner to inspect the suit locality and
decided the suit on the basis of the report submitted by the Commissioner apart from filing some additional documents and the appellate court
having accepted the additional documents and the arguments advanced on the part of the petitioner before it had set aside the judgment and decree
of the trial court and remanded the case to the trial court itself with certain directions; that in carrying out the directions issued by the appellate
court, a Commissioner also got appointed and he submitted his report, but without carrying on with the suit, as directed by the appellate court, the
petitioner has now come forward to file the petition to permit him to withdraw the suit with liberty to file a fresh suit on the same cause of action,
which he is not entitled to seek for; that the petitioner is not at all in possession and enjoyment of the suit so as to become eligible to plead or pray
to the effect that he is entitled to the suit property by means of adverse possession and moreover, the plaintiff having already suffered a decree, the
alternate plea advanced on the part of the petitioner in this application cannot be complied with nor could it be granted and on such grounds would
pray for dismissing the application.
The Court below, having examined the pleadings of the petition and the counter and having traced the pre-history of the case right from the time
of filing of the suit by the petitioner and assessing the present stage of the suit the dismissal of the same, the appeal preferred, the remand made by
the appellate court with direction to appoint a commission and the trial court appointing a Commissioner, the Commissioner inspecting the spot and
submitting his report on 29.1.1999 along with the sketch, finds that when the case was posted for hearing in the list on 5.2.1999 and again having
adjourned to 9.2.1999 and 15.2.1999 at the request of the learned Counsel for the petitioner, ultimately on 16.2.1999 when the matter was taken
up for trial, the petition had been filed under Order 23, Rule 1, C.P.C. seeking permission to withdraw the suit with liberty to file a fresh suit on the
same cause of action with a modified relief.
The trial court in consideration of the materials placed on record would further remark that the appellate court directed the trial court to give
adequate opportunity for parties to adduce additional evidence and on a commission being appointed, the Commissioner submitted his report and
when the matter was posted for trial ultimately in consideration of the fact that the matter was pending for more than five years, without complying
with the directions of the appellate court, the petitioner has come forward to file such an application only to delay the process of law and to subject
the other side to hardship and inconvenience; that moroever, the attitude exhibited on the part of the petitioner would further go against the very
intention of the appellate court in having remanded the matter with such directions and defeat the very compliance of such directions by the trial
court and on such remarks, the trial court finding that there is absolutely no justification on the part of the petitioner to have come out with such an
application, would ultimately dismiss the petition, but without costs. It is only against this fair and decretal order passed by the trial court, the
petitioner/plaintiff has come forward to file the above civil revision petition on certain grounds as brought forth in the grounds of Memorandum of
the civil revision petition.
During arguments, the learned Counsel appearing for the revision petitioner would submit, that the suit properties are the landed properties
falling under two categories measuring (i) 0.50.0 hectares and (ii) 0.14.05 hectares and that prescriptive right by long possession has been
acquired as a result of which the prayer in the suit has to be altered. The learned Counsel for the petitioner would also cite a judgment of this Court
delivered in Kokila and another Vs. K.S. Bhoopathy and five others, , which has been rendered following the proposition laid down in the
judgment of the Apex Court delivered in Beniram and Others Vs. Gaind and Others, , wherein the Supreme Court, in the facts and circumstances
encircling the case therein, has permitted the party, on a cost of Rs. 1,000, to withdraw the suit with liberty to file fresh suit on same or different
cause of action. Citing the above judgments, the learned Counsel for the petitioner would pray to allow the revision petition permitting the petitioner
to withdraw the suit with a liberty to file a fresh suit, even by imposing some costs.
On the other hand, the learned Counsel for the respondents having putforth the facts, would point out that the purpose of withdrawal is highly
detrimental to the interest of the respondents, which is reflected in the reasons assigned in the order of the lower Court. The learned Counsel would
cite a judgment of this Court delivered in A.P. Sahurudeen and Anr. v. Antony and two others (1992) 1 L.W. 100 wherein the learned single
Judge of this Court, having considered the similar question, has ultimately arrived at the conclusion that the plaintiff has failed to establish his case
on merits and hence he is not entitled, as of right, to seek withdrawal.
The other judgment cited by the learned Counsel for the respondents is one delivered by the Apex Court in R. Rathinavel Chettiar and Another
Vs. V. Sivaraman and Others, , wherein it has been held:
Order 23, Rule 1 provides that a plaintiff can withdraw a suit or abandon a part of his claim unconditionally. It creates a right in favour of the
plaintiff to withdraw the suit, at any time, after its institution. Once the suit is withdrawn or any part of the suit is abandoned against all or any of the
defendants, unconditionally, the plaintiff cannot bring a fresh suit on the same cause of action unless leave of the court is obtained as provided by
Order 23, Rule 1(3)(b).
In other words, a plaintiff cannot while unconditionally abandoning a suit or abandoning a part of his claim, reserve to himself the right to bring a
fresh suit on the same cause of action.
The other judgment cited by the learned Counsel is one delivered by the Apex Court in K.S. Bhoopathy and Others Vs. Kokila and Others, ,
wherein it is held:
The provision in Order 23, Rule 1, C.RC. 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 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 23, 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 23, Rule 1(3), C.RC. 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.
It is pertinent to note here that the very judgment cited by the petitioner reported in Kokila and another Vs. K.S. Bhoopathy and five others, , has
been reversed by the Apex Court in the above judgment, on appeal preferred by the other side in K.S. Bhoopathy and Others Vs. Kokila and
Others, . Therefore, the proposition as held by the single judge of this Court cited by the petitioner reported in Kokila and another Vs. K.S.
Bhoopathy and five others, is no more a healthy proposition and hence becomes not applicable to the case in hand.
The other judgment cited by the learned Counsel for the respondents is one delivered by a Division Bench of this Court in K. Chinna Vaira
Thevarv. S. Vaira Thevar AIR 1982 Mad. 160, wherein it is held:
The failure or inability of the plaintiff to secure necessary evidence to support his case will not be a ground as contemplated in Rule 1(3)(b) of
Order 23. The expression ""sufficient grounds"" occurring in Rule 1(3)(b) will not take in, dismissal of a suit on the ground that the plaintiff has not
established his case. The object of the rule is not to enable the plaintiff after he has failed to establish his case by adducing requisite evidence to
have a further opportunity to file a fresh suit to reagitate the matter so as to prejudice the other side. If such a thing is permitted there will be no end
to any litigation.
The plaintiff cannot be permitted to withdraw the suit at the trial stage, when he finds that the evidence by him is insufficient to establish the case
propounded by him. Consequently, he cannot also be permitted to withdraw the suit at the appellate stage after the trial court has considered the
entire evidence on merits and held that the evidence adduced is insufficient to establish the plaintiff''s case.
The other judgment cited by the learned Counsel for the respondents is one delivered by the single Judge of this Court in Singaravel Padayachi
v. Nagammal and Ors. (1996) 1 L. W, 430, wherein the learned single Judge has declined to permit the plaintiff to withdraw the suit since he has
come forward to file the petition after the evidence was over.
The last judgment cited by the learned Counsel for the respondents is one delivered by the learned single Judge of this Court in Santa Naicker
and 2 others v. Veluchamy and 2 others (1995) 2 L. W. 244, wherein also the permission sought for by the plaintiff to withdraw the suit during
pendency of the appeal against the dismissal of the suit for injunction was declined to be granted by the learned single Judge.
Now, the only point that arises for consideration is, whether the revision petitioner should be permitted to withdraw the suit with liberty to file a
fresh suit on the same cause of action as prayed for in the application filed before the lower Court?
From the backdrop of the entire proceeding right from the time of institution of the suit till the time of filing of the petition for withdrawal of the
suit, as rightly pointed out on the part of the lower Court, five precious long years have gone by and it is only after losing the suit and preferring the
appeal and seeking for a remand for additional evidence to be placed on record, the appellate Court conceding the case of the petitioner for the
appointment of a commission to inspect the spot with further opportunity for parties to be heard and decide the case, had remanded the matter to
the trial court which having carried out all such directions issued by the appellate court, at the time when the trial was to be commenced, the
petitioner has come forward to say that he found out from the report submitted by the Commissioner after inspection of the suit locality that he has
got a novel right to be established i.e., his title based on long possession thus opting to file the interlocutory application stating that he has to pray
for the relief of declaration that he is entitled to the suit property by means of adverse possession and hence he must be permitted to withdraw the
suit with liberty to file a fresh suit on the same cause of action.
It is relevant to note that the suit had been filed by the petitioner for a declaration of his possessory right and for permanent injunction. Unless
the petitioner was definite about his title, he would not have come forward to plead as stated above. Having lost the suit once and on appeal under
pretext that the appointment of the commissioner is necessary having got the remand of the matter and the appellant Court directions also having
been complied with by the trial court, now, the petitioner has come forward with the plea to withdraw the suit with liberty to file a fresh suit on the
same cause of action and this is too much an advantage attempted to have been taken on the part of the petitioner making use of certain provisions
of law that are meant for application only in genuine cases. There is absolutely no justification to concede the request of the petitioner for
withdrawal of the suit much less with liberty to file a fresh suit with the same cause of action to suit only his convenience.
All the judgments cited on the part of the respondents are unequivocal and pointed towards not permitting any party in the position of the
petitioner to withdraw the suit much less with the luxurious and exuberant relief i.e., with liberty to file a fresh suit on the same cause of action for a
modified relief. Already a precious time of five years has been lost, causing much hardship to the respondents for no fault of theirs, in the process
of the suit as filed by the petitioner. The judgment cited on behalf of the petitioner reported in Kokila and another Vs. K.S. Bhoopathy and five
others, , has been reversed by the Apex Court in the recent judgment cited on the part of the respondents by their Counsel delivered in K.S.
Bhoopathy and Others Vs. Kokila and Others, , thereby declaring that in such circumstances as it is widely prevalent in the case in hand permitting
to withdraw the suit by the petitioner with liberty to file a fresh suit on the same cause of action is no longer a healthy proposition and hence the
only conclusion that could be arrived at, in the circumstances of the case, is that the reasons offered on the part of the petitioner are neither just nor
convincing and the application filed by the petitioner as concluded by the Court below deserves only to be dismissed and no interference as sought
for on the part of the petitioner to be made into the fair and decretal order passed by the lower Court need be necessary. In short, either on facts
or in law, the petitioner is in no manner entitled to the relief sought for in the petition. The petition has no merits and deserves only to be dismissed.
In result, the above civil revision petition fails and the same is dismissed.
The fair and decretal order dated 22.3.1999 made in I.A. No. 69 of 1999 in O.S. No. 11 of 1994 by the Court of Additional District Munsif,
Sivagangai is hereby confirmed.
However, in the circumstances of the case, there shall be no order as to costs.
Consequently, C.M.P. No. 9915 of 1999 is also dismissed.