Madras High Court
Rajamanickam vs P.Dhandapani on 30 July, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:30.7.2013 Coram The Honourable Mr.Justice G.RAJASURIA S.A.No.235 of 2011 and M.P.No.1 of 2011 M.P.No.1 of 2013 Rajamanickam ...Appellant vs. 1.P.Dhandapani 2.P.Ramalingam P.Kumaravel 4.Rajakumari 5.Usharani 6.Thirugnana Mudaliar 7.Kailasa Mudaliar 8.Sampath Mudaliar ...Respondents This second appeal is directed against the judgment and decree dated 21.6.2010 passed by the Subordinate Court, Madurantakam, in A.S.No.40 of 2009 in confirming the judgment and decree dated 19.6.2009 passed by the District Munsif, Madurantakam, in O.S.No.175 of 2005. For Appellant : Mr.R.Yashodvardhan,Sr.counsel for Mr.G.Ilangovan For Respondents :Mr.M.S.Subramanian for R6 to R8 No appearance for R1 to R5 JUDGMENT
This Second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 21.6.2010 passed by the Subordinate Court, Madurantakam, in A.S.No.40 of 2009 in confirming the judgment and decree dated 19.6.2009 passed by the District Munsif, Madurantakam, in O.S.No.175 of 2005, which was one for permanent injunction.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3.Compendiously and concisely the germane facts absolutely necessary for the disposal of this second appeal would run thus:
(a)The appellant herein, as plaintiff, filed the suit seeking the following reliefs:
"(i)Grant permanent injunction restraining the defendants 1 to 5, their men, agents, and representatives from any way interfering with the plaintiff's peaceful possession and enjoyment of the suit 'A' schedule property and
(ii)Grant permanent injunction restraining the defendants 1 to 5, their men, agents, and representatives from any way interfering with the plaintiff's peaceful possession and enjoyment of the suit 'B' schedule property and
(iii)To direct the defendants to pay the cost of the suit to the plaint."
(extracted as such) as against the defendants in respect of the 'A' and 'B' schedule of properties as under:
Schedule of Property 'A' Schedule Property Property situate at Kancheepuram Dt.Cheyyur Taluk, Chithamoor Village,
1.Dry S.No.106/4B, O.35 cents. Out of 1.27 cents, bounded on the south by street, east by 'B' schedule, West by Venu Pillai, North by Ranganayagi's land.
2.Dry S.No.106/4B, 0.03 cents bounded on the south by street, east by Thendarai Kistha Pillai, North and West by Natesa Mudaliar.
'B' Schedule Property
3.Dry S.No.106/4B, 0.70 cents bounded on the north by Rangurama Reddiar, West by 'A' Schedule Item No.2 and road, east by Thandrai Krishna Pillai.
(extracted as such)
(b)The gist and kernel of the averments in the plaint would run thus:
'A' scheduled property described in the schedule of the plaint belongs to the plaintiff absolutely, as he purchased the same, vide sale deed dated 5.5.1963. 'B' scheduled property belongs to the plaintiff and D6 to D8 jointly as they are co-owners. While so, the defendant Nos.1 to 5, in collusion with defendant Nos.6 to 8, objected to the transfer of patta and that D1 and D5 were attempting to trespass into the suit properties. Hence the suit.
(c)Per contra, D1 to D5, as against whom the reliefs were sought, remained ex-parte and no written statement also was filed by them. D7 also remained ex-parte.
(d)However, written statement was filed by D6 and D8, the warp and woof of the same would run thus:
(i)The plaintiff is not the brother of D6 to D8. The plaintiff was given in adoption to one Ekambara Mudaliar of Purasaiwakkam, Chennai, even while he was a child. Wherefore, the plaintiff lost his right in the biological father's properties, so to say, Natesa Mudaliar's properties.
(ii)Plaint 'B' Scheduled property is the absolute property belonged to D6 to D8 and the plaintiff cannot claim any right over it, as he is not entitled to any share in Natesa Mudaliar's properties.
(iii)Under two sale deeds, the 'A' schedule of property was purchased by the plaintiff from out of the funds provided by D6 to D8. As such, D6 to D8 are also entitled to their shares in the 'A' schedule of property as co-owners.
(iv)D1 to D5 are the legal heirs of one Mangaiyarkarasi, who sold an extent of 1.15 cents of land referred to in the 'A' schedule of property. As such, this is a vexatious suit.
(v)Rejoinder was filed by the plaintiff refuting the contention raised by the defendants that the plaintiff was not the legal heir of Natesa Mudaliar, as according to the plaintiff, there was no adoption as alleged by the defendants.
(vi)Whereupon issues were set down for trial, during which, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A12. On the defendants' side, D8 was examined as D.W.1 and no document was marked on their side.
(vii)Ultimately the trial Court decreed the suit in respect of 'A' schedule of property and dismissed the suit in respect of 'B' schedule of property, as against which, the plaintiff preferred the appeal, which was dismissed, confirming the judgment and decree of the trial Court.
4.Challenging and impugning the judgments and decrees of both the Courts below, this second appeal has been focussed by the plaintiff on various grounds and also suggesting the following substantial questions of law:
"a)Whether the findings of the courts below are right in shifting the burden of proof of adoption on the appellant/plaintiff?
b)Whether the Courts below have applied the mandatory principles of the law that the factum of adoption shall be proved by the party who alleges adoption?
c)Whether the Courts below are right in making findings without first drawing up any issue.
d)Whether the Courts below are right in accepting the case of the respondents/defendants in the absence of proper pleadings in the written statement and proof?
e)Whether the findings of the Courts below are righth in the absence of proper pleadings and proof?
f)Whether the Courts below are right in casting on the appellant/plaintiff to prove a negative burden?
g)Whether shifting of burden of proof by the Courts below is right as per law of Evidence?
h)Whether the wrong findings of the courts below totally in contrast with the record of oral evidence will become a basis for interference into the judgment of the courts below?"
(extracted as such)
5.It is also the contention of the appellant/plaintiff that during the pendency of the appeal before the first appellate Court, I.A.No.208 of 2009 under Order 41 Rule 27 of C.P.C.was filed for reception of additional documents and even though it was allowed, the additional documents were not considered properly.
6.M.P.No.1 of 2013 was filed under Order 23 Rule 1(3) of C.P.C.,by the plaintiff/appellant and counter was filed by the contesting defendants/respondents herein, I would like to go into the merits of the said application.
7.The learned Senior counsel for the petitioner/appellant/plaintiff would pyramid his arguments, which could succinctly and precisely be set out thus:
(i)The bare suit for injunction was focussed as against D1 to D5, who remained ex-parte. Both the Courts below discussed on the plea of adoption alleged by the defendants 6 to 8, who are only formal parties in this case.
(ii)The relief of injunction was sought as against D1 to D5, but they remained ex-parte and no relief at all was sought as against D6 to D8 and in such a case, both the Courts below obviously and axiomatically traversed beyond the scope of the suit in considering the validity or otherwise of the adoption alleged by D6 to D8
(iii)In the suit there was no prayer for declaration that the plaintiff being his biological son is the legal heir of Natesa Mudaliar.
(iv)At this stage, application under Order 6 Rule 17 of C.P.C. cannot be filed so as to get any such declaration in view of the relevant provisions of the amended C.P.C.
(v)The additional documents filed in the suit including the partition deed would reveal that the plaintiff and D6 to D8 got partitioned Natesa Mudaliar's property during the year 2005 and in such a case, the question of treating the plaintiff as stranger to the family of Natesa Mudaliar on the ground that the plaintiff was already adopted by one other person, does not arise. In the fitness of things, unless the suit is withdrawn and a fresh suit is filed seeking comprehensive relief as against D6 to D8 also, the question of putting a quietus to the controversy would not arise.
Accordingly the learned Senior counsel for the appellant/plaintiff would pray for the withdrawal of the suit.
8.Per contra, placing reliance on the counter filed by D6 to D8, the learned counsel would put forth and set forth his arguments, which could succinctly and precisely be set out thus:
(i)The plaintiff did not claim any relief as against D6 to A8 deliberately so as to get a binding judgment on them under the guise of getting relief only as against D1 to D5.
(ii)'B' Scheduled property is measuring 70 cents, which was purchased by Natesa Mudaliar during the year 1973, over which, the plaintiff cannot claim any right, inasmuch as even as a child he was given in adoption in favour of one Ekambara Mudaliar.
(iii)Both sides adduced extensive evidence relating to adoption. Both the Courts below gave a finding that the plaintiff was in fact given in adoption even while he was a child in favour of Ekambara Mudaliar.
(iv)By this withdrawal of the suit, the findings would get nullified. Any finding in favour of the defendants D6 to D8 should not got nullified by such withdrawal of the suit by the plaintiff.
(v)Both the Courts below gave a finding in favour of D6 to D8 and as against the plaintiff and in order to bypass those findings, the plaintiff has chosen to file this application which cannot be entertained legally.
(vi)No injunction suit also was maintainable in the way that the plaintiff formulated and filed. There is no formal defect in instituting the suit, but the suit itself was filed with a mala fide intention to mulct the defendants 6 to 8 with some liability indirectly.
(vii)There was no declaration of title over the suit property in favour of the plaintiff that he was a co-sharer or joint owner.
(viii)The suit framed itself was not maintainable.
(ix)The first appellate Court admitted the additional documents and marked them as Exs.A13 to A24. Even after giving such opportunity, the appellate Court confirmed the findings of the trial Court.
As such, the learned counsel would pray for the dismissal of the application, citing various decisions, so as to buttress and fortify his argument.
9.The point for consideration is as to whether the application filed by the plaintiff under Order 23 Rule 1(3) of C.P.C is tenable in the facts and circumstances of this case and that too, in the wake of D6 to D8 contending that vested right accrued in their favour by virtue of the findings of both the fora below?
10.Indubitably and indisputably, unarguably and unassailably the suit was filed as against eight defendants. However, the prayer for injunction is only as against defendants 1 to 5, who are admittedly strangers to the family of Natesa Mudaliar-the biological father of Rajamanickam-the plaintiff as well as D6 to D8. There is no prayer for declaration of the plaintiff's civil status or that of his proprietary right over the suit properties. According to the plaintiff, the defendants 6 to 8 are only formal parties because in respect of the 'B' schedule of property they are co-owners along with the plaintiff and inasmuch as D6 to D8 were not cooperating with the plaintiff to get injunction as against the aggressors, namely D1 to D5, they have been arrayed as defendants.
11.Wherefore it is clear from the mere poring over and perusal of the averments in the plaint that the suit in stricto senso could be captioned, labelled, dubbed only as a bare suit for injunction as against D1 to D5.
12.At this stage it is worthwhile to distinguish and differentiate among the three legal terminologies (1)Necessary party (2)Proper party and (3)Formal party
13.At this juncture I would like to refer to the Black's Law Dictionary (Eighth Edition), at page No.1154 concerning the definition of 'necessary party', 'proper party' and 'formal party':
'Necessary party'-A party who, being closely connected to a law suit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings.
'Proper party'-A party who may be joined in a case for reasons of judicial economy but whose presence is not essential to the proceeding.
'Formal party'- A party to an action who has no control over it and no financial interest in its outcome; esp., a party who has some immaterial interest in the subject matter of a lawsuit and who nonetheless joined in the lawsuit to avoid procedural defects."
14.Here it is an unarguable and unassailable fact that D6 to D8 even by phantasmagorical thoughts or by any stretch of imagination be labelled as necessary parties, because, no relief has been claimed as against them. In a suit, if no relief is claimed as against any of the defendants, then necessarily they should be termed only as formal parties and the interest of the formal party is only to get, at the most, cost in his favour and he cannot expect any finding in his favour and touching upon the alleged interest of D6 to D8, viz-a-vis the plaintiff, no issue could be framed or no finding could be given by any Court legally. But unfortunately in this case, despite D1 to D5 as against whom injunction relief was sought for, remained ex-parte, both the Courts dilated on various other issues touching upon the plaintiff-Rajamanickam and D6 to D8 on the sole ground that D6 to D8 raised certain pleas concerning adoption, ownership etc.
15.Scarcely could it be stated that law enables a defendant who is a formal party as against whom no relief is sought, to press the Court to get a finding in his favour based on factual pleas raised by him in his written statement.
16.My mind is reminiscent and redolent of the maxim 'Judicis est judicare secundum allegata et probata' It is the proper role of a judge to decide according to the allegations and proofs.
17.Any amount of evidence without the back up of the pleadings should be discarded. This suit cannot be termed as the suit for declaration of the plaintiff's status as that of the biological son of Natesa Mudaliar and that he was not the adopted son of Ekambara Mudaliar. No doubt, the defendants 6 to 8 of their own accord, even though there is no whisper in the pleas about the status of the plaintiff as well as the adoption etc, elaborated on that point in their written statement.
18.Fortunately the trial Court did not frame any issue on that as per Order 14 of C.P.C. and for that matter no issue also could be framed touching upon the validity of adoption or otherwise of the plaintiff because that is beyond the controversy involved in the suit and also the scope of the suit. The Court could entertain evidence only touching upon the issue involved in the suit.
19.To the risk of repetition and pleonasm but without being tautalogous, I would like to point out that there should be proper framing of an issue and only touching upon those issues, evidence could be entertained. There cannot be any second thought over it and it is as thoroughly settled as any proposition of law could be.
20.Here, I would find fault with the Courts below for having entertained evidence touching upon adoption and various other matters.
21.The core question arises as to how the Courts below could take cognizance of, on their own accord about the controversy between the plaintiff and the formal parties, namely, D6 to D8 when no relief at all is claimed as against them. As such, no more elaboration is required and I would like to simply set aside the said findings of the Courts below, as those findings are having no legs to stand and they are alien to the adjudication of the injunction suit.
22.Then the question arises as to whether in such a case the formal parties, viz D6 to D8 can claim that such findings got vested in them, and that by allowing the plaintiff to withdraw the suit, such vested right got adjudicated in their favour would get lost.
23.The answer is at once now clear that the formal parties D6 to D8 cannot claim any such right got vested in them and that would allegedly get lost by such withdrawal of the suit by the plaintiff. With this in mind, if the following precedents cited on the side of the defendants 6 to 8 are perused, then it would be at once clear that those decisions have been cited out of context in this factual matrix.
24.Certain excerpts from the precedents cited by the learned counsel or the respondents/defendants 6 to 8 it would run thus:
(i)(1999) 3 SUPREME COURT CASES 115 EXECUTIVE OFFICER ARTHANARESWARAR TEMPLE VS. R.SATHYAMOORTHY AND OTHER:
"14.It is true that in a large number of cases decided by the High Courts, it was 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 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. (see Thakur Singh v. A Achuta Rao (1977)2 APLJ 111); Kedar Nath v. Chandra Kiran (AIR 1962 All 263); Vidhydhar Dube v. Har Charan (AIR 1971 All 41); Charles Samuel v. Board of Trustees((1978) 1 MLJ 243), Lala Chatram v. Krishnammal (1984) 1 MLJ 28; Jubedan Begum v. Sekhawat Ali Khan (AIR 1984 P & H 221); Ram Dhan v. Jagat Prasad Sethi (AIR 1982 Raj 235). In the present case, the learned Judge felt that no such finding in favour of the Commissioner was being mullified by the withdrawal of the OP at the stage of revision and therefore the withdrawal of the OP was permissible.
15.The above approach of the High Court is legally correct but there are, in our opinion, certain other factors which ought to have been taken in to consideration by the High Court. The mos important aspect was that on the ground that they would agree for an adjudication as to the nature of the property, the hereditary trustees prayed. In this Court in Civil Appeal No.1930 of 1990 that the proceedings initiated by the Commissioner against them under the Endowments Act, 1959 should be directed to be dropped. This Court thought that in view of the agreement by the trustees to have an adjudication on merits, the Commissioner could and should drop the proceedings. In fact, by the date of the memo filed for withdrawal of the CRP and the OP, the Commissioner had dropped the proceedings initiated against the hereditary trustees. In our view, having obtained such an advantage from the order of remand, the hereditary trustees could not have precluded the High Court from adjudicating the matter on merits by withdrawing the CRP and the OP."
(ii)(2000) 5 SCC 458, at page 467 K.S. Bhoopathy v. Kokila.
"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 Kaur1 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. Sathyamoorthy2 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.
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)R. Rathinavel Chettiar v. V. Sivaraman, (1999) 4 SCC 89, at page 93 :
"9. Every suit, if it is not withdrawn or abandoned, ultimately results in a decree as defined in Section 2(2) of the Code of Civil Procedure. This definition, so far as it is relevant, is reproduced below:
2. (2) decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include
11. Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant.
12. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject-matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystallised and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. Now, the decree can be recalled, reversed or set aside either by the court which had passed it as in review, or by the appellate or revisional court. Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits.
21. In another Allahabad decision in Jutha Ram v. Purni Devi10 the plaintiff compromised the suit with certain defendants at the appellate stage and gave an application to withdraw the suit against those defendant-respondents. The Court refused permission to withdraw the suit as the withdrawal would have the effect of depriving the other respondents of the benefit of the lower courts adjudication in their favour. This decision, incidentally, applies squarely to the facts of the present case as in this case also the plaintiff compromised with one of the respondents and gave an application for withdrawal of the suit. Obviously, the intention was to deprive the appellants of the benefit which had accrued to them on account of a declaratory decree having been passed in favour of the plaintiff who incidentally was their predecessor-in-interest."
25.A mere running of the eye over those precedents would unambiguously and unequivocally highlight and spotlight the fact that in those cases between the contesting parties certain issues were decided and the defendants got some adjudication in their favour and without any valid reason the plaintiff attempted to simply take the wind out of the sail of the defendants by withdrawing the suit. The Honourable Apex Court heavily came upon such plaintiffs and foiled their attempt to withdraw the suit.
26.Here my discussion supra would at once convey and portray that there is no such case made out on the side of the defendants 6 to 8 to resist the withdrawal. At the most the defendants 6 to 8 could claim for cost. Generally even in a case which is not one for withdrawal, the formal parties could only claim cost and nothing more they could demand.
27.To say the least, notwithstanding the fact that D1 to D5 as against whom the relief were claimed, remained ex-parte, the trial Court conducted the trial and rendered judgment, which is totally antithetical to the well established principles of law.
28.Then the question would arise as to why then permission should be given to the plaintiff to file a suit comprehensively, when he did choose to file the suit in a truncated manner as against D1 to D5 for bare injunction without seeking other larger reliefs, even though he could have asked earlier.
29.At this juncture, I would suo moto visualize the applicability of Order 2 Rule 2 of C.P.C also.
30.In a subsequent proposed suit for partition between the plaintiff and D6 to D8, whether any findings in this suit would constitute res-judicata or estoppel.
31.The answer is at once clear in view of my discussion supra that the present suit itself is focussed only as against the strangers namely, D1 to D5, for injunction and any decision rendered in that would not operate as res judicata or estoppel and as such, obviously Order 2 Rule 2 of C.P.C. would not be an embargo for filing regular partition suit by the plaintiff.
32.Over and above that even in this case, as such the injunction suit cannot be converted into a suit for declaration and also for partition. These are all quite obvious. There is formal defect also in the suit as pointed out by the defendants themselves that the suit itself is bad for want of a prayer for declaration.
33.In the presence of all these defects and also the complications involved in this suit, in the fitness of things, permission for withdrawal could rightly be granted, so that the plaintiff could file a comprehensive suit seeking adequate reliefs; whereupon binding decisions could be rendered.
34.The learned Senior counsel for the appellant/plaintiff would invite the attention of this Court to the fact that anterior to the amendment of C.P.C. by virtue of Act 104 of 1976, the word 'other' before 'sufficient grounds' was deleted consciously and meaningfully. As such, the term 'sufficient grounds' need not be read by applying the concept 'ejus generis' with the term 'formal defect' as found in Order XXIII Rule 1(3)(a) of C.P.C.
35.I would like to agree with his submission because Order XXIII Rule 1(3)(b) is an independent clause. If there is any formal defect, as per Order XXIII Rule 1(3)(a) then that would be sufficient for withdrawal. So far clause (b) is concerned, it contemplates 'sufficient grounds'. The intention of the Legislators is writ large. They do not want to shackle the hands of the Court in exercising their discretion to grant permission for withdrawal if there are sufficient grounds. The Legislators cannot visualize consistencies and discomfitures that a plaintiff might be experiencing in the litigative process. Hence, they left it to the discretion of the Court to consider the grounds and their sufficiency and accordingly take a decision to grant permission for withdrawal or not in appropriate cases.
36.In this case my discussion supra would connote and denote that there are both formal defects as well as other in the suit, which would point up and show up that such granting of permission for withdrawal is absolutely necessary. Accordingly, I am of the view that the application M.P.1 of 2013 has to be allowed and it is allowed subject to payment of cost of Rs.15,000/- (rupees fifteen thousand) payable by the appellant/plaintiff to the respondents 6 to 8/defendants 6 to 8. On balance, the plaintiff is permitted to withdraw the suit and file a comprehensive suit on the same cause of action relating to the same subject-matter relating to this suit.
37.On balance, the judgment and decree of both the Courts below are set aside and the original suit shall stand dismissed as withdrawn. Consequently, M.P.No.1 of 2011 is closed. Registry shall send back the records to the trial Court immediately.
Msk 30.07.2013
Index:Yes
Internet:Yes
To
1.The Subordinate Court, Madurantakam
2.The District Munsif, Madurantakam
G.RAJASURIA,J.
Msk
S.A.No.235 of 2011
30.7.2013