The President Savriyarpattinam Village Panchayat vs Santhiyagu and Others

K. Gnanaprakasam, J.—The 2nd defendant in OS. No. 40/2003, on the file of the District Munsif Court, Mudukulathur is the revision

petitioner. The respondents 1 and 2 in this petition have filed the suit in OS. No. 40/2003 for declaration and for permanent injunction and also

filed an application under Order 39 Rule I and 2 CPC for grant of interim injunction and the suit was filed in July 2003.

It is stated by the revision petitioner that the trial court has not passed any order of interim injunction. The suit came up for hearing on 20.8.2003

and the plaintiff made an endorsement, stating that the plaintiff was withdrawing the suit with a liberty to file a fresh suit on the same cause of action

and on such endorsement, the court has simply stated ""Recorded"". The said order is being questioned in this civil revision petition. Heard the

learned Advocate for the petitioner and the respondent.

The objection of the revision petitioner is in three fold, viz. (1) The plaintiff has not filed any application, seeking leave of the court to withdraw

the suit as provided under Order 23 Rule 1 and therefore, the permission granted was not proper, (2) In the defendants column, one Jeyaseeli was

shown as the defendant and the said Jeyaseeli was not at all a party to the suit and the same was not taken note of by the Court and the trial court

without applying its mind has simply recorded the endorsement made by the plaintiff and (3) The plaintiffs have not put the defendants on notice.

With regarded to the first objection, on going through the order passed by the trial court on 20.8.2003, which is available at Page 12 of the

typed set of papers, we could see that the plaintiffs made an endorsement that they were withdrawing the suit with a liberty to file a fresh suit on the

same cause of action. Admittedly, the plaintiffs have not filed any application as contemplated under Order 23 Rule 1(1) & (2). If the plaintiff

wants to withdraw the suit, he has to file an application, seeking leave of the court for withdrawal of the suit and without any such application, leave

sought for by the plaintiff was granted by the trial court, which is erroneous.

Order 23 Rule 1 states, ""At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or

abandon a part of his claim."" Order 23 Rule 1(2) states, ""An application for leave under the proviso to sub rule (1) shall be accompanied by an

affidavit of the next friend and also, if the minor or such person is represented by a pleader by a certificate of the pleader to the effect that the

abandonment proposed is, in his opinion, for the benefit of the minor or such other person."" This rule is intended to safeguard the interest of the

minor. Apart from the application, which is required to be filed, seeking leave of the court, a certificate of the pleader has got to be made that the

abandonment of the suit in his opinion is for the benefit of the minor. In either case, an application is required to be filed, seeking leave of the court

for the withdrawal of the suit and the court must be satisfied before granting such a leave and no such application has been filed by the

respondents/plaintiffs nor the court recorded its satisfaction in granting leave and therefore, the order passed by the trial court is erroneous.

The 2nd objection that one Jeyaseeli was shown as the 2nd defendant is ex-facie wrong. It is not known, how the name of Jeyaseeli has been

shown as the 2nd defendant. The learned Advocate for the respondents 1 and 2/ plaintiffs is also not in a position to give any explanation for the

inclusion of the name of Jeyaseeli as the 2nd defendant. It shows that the trial court has not at all applied its mind before passing the order, which

resulted in passing such an erroneous order.

With regard to the third objection, it is also seen that the plaintiffs have not put the defendants on notice before withdrawing the suit and when

especially the plaintiffs sought leave of the court to withdraw the suit to file a fresh suit on the same cause of action, the defendants should have

been put on notice to make their objections, if any. for such a leave sought for by the plaintiffs and therefore, on that ground also, the order passed

by the trial court is liable to be set aside.

In the result, the civil revision petition is allowed and the order dated 20.8.2003 is set aside and the suit in OS. No. 40/2003 is restored to the

file of the District Munsif Court, Mudukulathur for further proceedings. It is seen that the defendants in the said suit have not filed written statement

and the trial court after taking the suit on file, shall give an opportunity to file a written statement and on filing written statement, the trial court shall

conduct further proceedings in accordance with law and also dispose of the suit, as expeditiously as possible.