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Judgment
R. Banumathi, J.—This Civil Revision Petition is directed against the Order dated 20.09.2004 passed in I.A.No. 10477 of 2004 in O.S.No.
12449 of 1996 by the VII Assistant Judge, City Civil Court, Chennai, partly allowing the Petition filed under Order 23 Rule 1(3) C.P.C and
declining to grant leave to file a fresh suit. The Plaintiff is the Revision Petitioner.
Claiming that she is the adopted Daughter of Sankara Narayana Pillai, the Plaintiff has filed the Suit in O.S.No. 1826 of 1993 before the High
Court for Partition and Separate possession of ""A"" and ""B"" Schedule Property. ""A"" Schedule property consists of six items. Item (vi) of ""A
Schedule property is situated at Chennai. Hence, the Plaintiff has filed the Suit after obtaining leave to sue. When the Suit was pending, due to
enhancement of pecuniary jurisdiction of Subordinate Courts, the Suit was transferred to City Civil Court, Chennai and renumbered as O.S.No.
12449 of 1996. Resisting the Suit, the Defendants have filed the Written Statement. The Trial commenced and the Parties also adduced evidence.
I.A.No. 10477 of 2004:- At the stage, when the Suit was pending Part-heard stage, the Plaintiff has filed this Application under Order 23 Rule
1(3) C.P.C stating that the Defendants have taken a defence that the properties situated at Madras does not belong to Sankaranarayana Pillai and
that the Court has no territorial jurisdiction to try the Suit. The Plaintiff sought to withdraw the Suit contending that all the Plaint Schedule
Properties except Item No. (vi) in ""A"" Schedule Properties (situated at Madras) are situated at Tirunelveli and that during the final decree
proceedings, the Subordinate Court, Tirunelveli only would be in a better position to appoint Commissioner to effect partition of the Suit
Properties. Hence, the Plaintiff has filed the Application seeking to withdraw the Suit with liberty to file a fresh suit on the same cause of action
before the Sub-Court, Tirunelveli.
The Defendants have strongly resisted the Application by filing elaborate Counter Statement contending that the Plaintiff has purposely included
Item No. (vi) of ""A"" Schedule Property under false pretext that the family property is also situated at Chennai. The Third Defendant had already
taken out an application for dismissing the Suit on the ground that Item No. (vi) in ""A"" Schedule Property does not belong to Sankaranarayana
Pillai and that the City Civil Court, Chennai has no territorial jurisdiction to entertain the Suit and determine the issues.
The Trial Court partly allowed the Petition to the extent of permitting the Plaintiff to withdraw the Suit. At the same time, the Trial Court partly
dismissed the Petition regarding liberty to file a fresh suit before Sub-Court, Tirunelveli finding that the Application has been belatedly filed at the
part heard stage. Learned Judge was of the view that it would not be appropriate to grant leave to file Fresh Suit, at the distant point of time.
Aggrieved over the Impugned Order, the Plaintiff has preferred this Revision Petition. Respondents are yet to be served. However, on seeing
the Advertisement in the Paper said to have been issued by the Revision Petitioner / Plaintiff, it is stated that only the Third Respondent is the main
contesting party. Under such circumstances, notwithstanding the non-service of Notice to the Respondents 1, 2 and 4, the main Revision Petition
itself has been taken up for final hearing.
Assailing the Impugned Order, learned counsel for the Revision Petitioner / Plaintiff has submitted that the Trial Court erred in partly allowing the
Petition without granting liberty to file a fresh suit on the same cause of action. It is submitted that the Court below could have very well dismissed
the Petition entirely and the Plaintiff would not be proceeded with the Suit. Placing reliance upon the decisions reported in Marudachala Nadar Vs.
Chinna Muthu Nadar and Another, , T.W. Ranganathan Vs. T.K. Subramaniam and Others, , learned counsel has submitted that the Impugned
Order is in violation of Order 23 Rule 1(3) C.P.C and the Court cannot spilt up the order to cause serious prejudice to the Plaintiff.
Countering the arguments, learned counsel for the Third Respondent has submitted that the Trial Court has rightly dismissed the Petition without
granting leave to file a fresh suit. It is submitted that the Plaintiff purposely filed the Suit in Chennai under the pretext of including Item No. (vi) of
A"" Schedule Property. Submitting that the Suit is in a part heard stage, learned counsel for the Third Respondent has submitted that in
consideration of the facts and circumstances of the case, the Trial Court has rightly declined to grant leave to file a fresh suit and that the Third
Defendant is aged 73 years and that the Revision Petition is filed only to cause harassment to the Third Respondent.
The only point that arises for consideration is whether the Trial Court was right in partly allowing the Petition giving permission to withdraw the
Suit and dismissing the Suit declining to grant liberty to file a fresh suit.
Plaint ""A"" Schedule Property consists of six items. The Sixth Item is an extent of 600 Sq.ft with the super structure situated at Door No. 2,
Venkatesa Naicken Street, Triplicane, Madras - 5. All other immovable properties - Items (i) to (v) of ""A"" Schedule Properties are situated in
Tirunelveli. In the Trial Court, the Defendants have raised strong objections as to the maintainability of the Suit in Chennai. The Suit was originally
filed in O.S.No. 1826 of 1993 before the High Court, Madras, after obtaining leave to sue. Thereafter, the Suit was transferred to the City Civil
Court, Chennai and renumbered as O.S.No. 12449 of 1996.
At that stage when the Trial was on progress, the Plaintiff has filed the Petition for withdrawal of the Suit. The contention of the Plaintiff is that
when the Court was not willing to grant leave to file fresh suit, the Trial Court ought to have dismissed the Application rather than dismissing the
Suit as withdrawn. Learned counsel for the Third Respondent has submitted that since all the items of properties are situated at Tirunelveli, the Suit
filed by the Plaintiff is patent abuse of process of Court and in consideration of the conduct of the Plaintiff, the Court below has rightly dismissed
the Suit declining to grant leave to file fresh suit.
An Application to withdraw the Suit with liberty to file a fresh suit must either be allowed or refused in toto. It is not open to the Court to grant
a prayer for withdrawal and refuse the leave. If liberty is refused, the Suit should not be dismissed, but must be retained in the file for Trial /
continuation of Trial. If an application is made for withdrawal of the Suit with liberty to file a fresh shit, it is not open to the Court to grant only
permission for withdrawal, without liberty to file a fresh suit. If the Court simply allows withdrawal but refuses liberty, the Court would be acting
without jurisdiction in dividing the Petition into two parts. It is to be noted that the Application under Order 23 Rule 1(3) of C.P.C is indivisible
whole. The Trial Court was not right in separating the prayer for withdrawal and the leave to file a fresh suit. When the Court has declined to grant
leave to file a fresh suit, the Trial Court ought to have dismissed the Application in toto.
Contending that the Application under Order 23 Rule 1(3) C.P.C is to be treated as an indivisible whole, learned counsel for the Revision
Petitioner / Plaintiff has relied upon the decision reported in Thadi Konda Veeraswami Vs. Thullum Peda Lakshmudu and Others, . In that case,
the Plaintiff filed a Petition to withdraw a suit with permission to file a fresh suit regarding the same subject matter under Order 23 Rule 1 (3)
C.P.C and the Court was not willing to grant the permission sought for but passed an order the petitioner may withdraw the suit if he wants. This is
not a case for which permission can be given to withdraw the Suit with liberty to bring a fresh suit. Petition was dismissed. That order was
challenged in Revision before this Court. In the above said decision, it has been made clear that when an application is filed for withdrawal of the
suit with permission to file a fresh suit on the same cause of action, the Court has a right to dismiss the petition telling the Petitioner that he might
withdraw the suit if he wants, but it will not give him permission to file a fresh suit regarding the same subject matter and that such an application
must be allowed or refused in toto and that if the liberty is refused the suit should not be dismissed at once but to be retained for trial in the usual
course and the Court cannot divide the petition into two and accept the withdrawal and refuse the liberty in the same order.
The same situation arose in the decision reported in T.W. Ranganathan Vs. T.K. Subramaniam and Others, . In the said case also, the Court
below directed withdrawal of the Suit and when giving liberty to file a fresh suit, observing that if the Court disallows the liberty sought for, it should
dismiss the Application and allow the Suit to proceed, the Court has held:-
...when an application for permission to withdraw a suit with permission to institute a fresh suit is made under Sub-rule (2) of Order 23 Rule 1 of
C.P.C, it is not open to the Court to treat it as if it is an application under Sub-rule (1) without any condition and to grant the prayer for withdrawal
and refuse the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit for the prayer under Sub-rule (2) must be treated as
one whole and the court may either reject the entire prayer and allow the suit to proceed or allow the entire prayer, that is, permit the withdrawal
of the suit with liberty to bring a fresh suit. the reason is obvious. If the Court grants the petitioner the permission to withdraw but refuses the
permission to institute a fresh suit, the result would be that the Plaintiff would be deprived of carrying on with the suit as best as he can and would
also not be permitted to file a fresh suit on the same cause of action and it was not intention of the Legislature that the Plaintiff should be put to this
loss by breaking up the prayer for withdrawal with permission to file a fresh suit about the same subject matter into two parts. This is also the view
taken in Marudachala Nadar Vs. Chinna Muthu Nadar and Another, .
Thus, it has been consistently held that an Application under Order 23 Rule 1(3) C.P.C is an indivisible whole and if the Plaintiff is not allowed
liberty to institute a fresh suit, the pending suit should not be dismissed; but the Application should be refused altogether and that the Suit should be
retained for Trial. The Trial Court was not right in partly allowing the Petition to the extent of permitting the Plaintiff withdrawing the Suit and
refusing to grant liberty to file a fresh suit. Having declined to grant leave to file a fresh suit on the same cause of action, the Trial Court ought to
have dismissed the Application in entirety. The order of the learned Judge declining to grant the leave is justified since the Application has been
filed when the Suit was in Part-heard stage. However, learned Judge ought not to have dismissed the Suit. Hence, the Application in I.A.No.
10477 of 2004 is to be dismissed in toto.
Learned counsel for the Third Respondent has made elaborate submissions contending that the Plaintiff has filed the Petition giving false
information as if the Suit is pending. The maintainability of the Suit is also assailed contending that the filing of the Suit in City Civil Court, Chennai is
a gross abuse of process of the Court. The merits of this contention cannot be gone into in this Revision Petition. Such arguments are to be
advanced only before the Trial Court, which has seized up the matter.
For the foregoing reasons, the Order dated 20.09.2004 passed in I.A.No. 10477 of 2004 in O.S.No. 12449 of 1996 by the VII Assistant
Judge, City Civil Court, Chennai is set aside and this Civil Revision Petition is allowed. I.A.No. 10477 of 2004 in O.S.No. 12449 of 1996 is
dismissed. No costs. The connected C.M.P.No. 2828 of 2005 is closed. Learned VII Assistant Judge, City Civil Court, Chennai is directed to
expedite the Trial and dispose of the Suit within a period of two months from the date of receipt of copy of the order.