Madras High Court
Thangapandian And Another vs Sri Muthumariamman Idol, ... on 10 February, 1998
Equivalent citations: 1998(3)CTC454
ORDER
1. The above revision has been filed by the defendants in O.S.No.950 of 1987 on the file of the Sub Court. Tiruchirappalli, challenging the order passed by the learned judge in the court below dated 1.9.1992 in I.A.No.393 of 1992, wherein the plaintiff has been permitted to withdraw the suit O.S.No.950 of 1987 with liberty to file a fresh suit on the same cause of action in exercise of the powers under Order 23, Rule 1 read with Section 151 of the Code of Civil Procedure.
2. The suit was filed by the plaintiff-temple represented by its Executive Officer for recovery of possession of the suit property based on title. It appears that the defendants contested the claim by filing a written statement contending that the plaintiff -temple has no title to the suit property. At that stage, it appears that on verification it was noticed that the description of property as given in the plaint is not complete either in respect of boundaries or in respect of the measurements and this technical defect may cause prejudice to the rights and interests of the plaintiff-temple. Consequently, on advice, the application for withdrawal with liberty to file fresh suit on the same subject matter was filed. The said application was also opposed by the defendants contending that inadequate or wrong description of property in dispute in suit is not a formal technical defect in the plaint and such a defect is a substantial one and, therefore, liberty should not be given as prayed for.
3. On the above claims and counter claims, the learned subordinate Judge, on being convinced of the legality, genuineness and propriety of the claims made, allowed the application on the view that the defects pointed out do not pertain to the substantial merits, but are formal defects and, therefore, there could be no impediment for allowing the application as prayed for by the plaintiff. In coming to such a conclusion, the court below placed reliance on the decision reported in V.Balan alias V. Balasubramanian v. R.S. Rajan and another, 1991 (2) L.W.193.as against the reliance placed by the learned counsel for the defendants on the decision reported in Lala Chatram v. Krishnammal, 1984 (I) M.L.J. 28. Mr.R.Srinivasan, learned counsel appearing for the petitioners strenuously contended that the court below committed an error in relying upon the decision reported in V.Balan alias V.Balasubramanian v. R.S. Rajan and another, 1991 (2) L.W. 193, that the stage at which the application for withdrawal was moved also would disentitle the plaintiff from getting the relief of withdrawal granted by the court and that if at all the remedy available was only to file an application for appropriate amendment and not by seeking for withdrawal of the suit with liberty to file a fresh suit on the same subject matter.
4. In Lala Chatram v. Krishnammal 1984 (I) M.L.J. 28 a learned single judge of this Court held in a case where the first Appellate Court permitted the plaintiff to withdraw the suit with liberty to file a fresh suit on the same subject-matter, that the plaintiff is not entitled to withdraw the suit. That was a case wherein a suit filed by the plaintiff for declaration of title to a vacant space in T.S.No.620, whereas the defendant claimed that the land actually was in T.S.No.629. The trial court appears to have dismissed the suit on the report of the commissioner and the plaintiff pursued the matter on appeal and before the Appellate Court, an application for amending the plaint to include T.S.No.629 in the schedule of description was also filed, but was dismissed. A revision filed thereafter also seems to have been dismissed by this Court. It was at that stage an application seems to have been filed before the First Appellate Court to permit the plaintiff to withdraw the suit and file a fresh suit and with this, when permitted by the learned First Appellate Judge, the learned single judge interfered. In addition to all the above, it seems in that case, the case of the plaintiff was that further evidence to be let in to establish the case and talcing into account this aspect of the matter also, the learned single judge appears to have felt that it was not given to the plaintiff to wipe the slate clean of her own pleading and to start a fresh litigation on fresh pleading. In my view, there is hardly any comparison of the case considered by the learned single judge in Lala Chatram v. Krishnammal, 1984 (I) M.L.J.28 to the case on hand and the stage at which the request is made in the present proceeding.
5. In V.Balan alias V.Balasubramanian v. R.S. Rajan and another, 1991 (2) L.W. 193 yet another learned single judge of this Court had an occasion to deal with a similar claim relating to withdrawal of a suit with permission to file a fresh suit on the same subject-matter. That was a case wherein the petition for amendment of a plaint filed in a suit for specific performance to include an averment of readiness and willingness was dismissed and the dismissal was upheld by this Court as also by the Apex Court and thereafter, an application by the plaintiff was made seeking leave to withdraw the suit and institute a fresh suit on the same cause of action. The learned single judge held that the attempt made to cure a formal defect cannot stand in the way of the permission being granted and there was every justification for the petitioner to seek for withdrawal of the suit already instituted with liberty to institute another suit on the same cause of action.
6. I have carefully considered the submissions of learned counsel for the petitioners. The respondent has not entered appearance through counsel. I am satisfied that the facts and circumstances as presented in this case would indicate that the defect relating to the description is a formal defect only and that even otherwise, the fact that such a defect is likely to affect a proper and effective adjudication of all the claims in the suit and the further fact that plaintiff is a public institution, the affairs of which is managed from time to time by the administrator concerned, the lapse at some point of time committed by the person who instituted the suit, should not be allowed to be perpetuated to the detriment of a public institution. Consequently, the permission granted in this case by the court below on the view that the defects are in the nature of formal defects only, cannot be said to suffer from any patent error of law or perversity in the matter of exercise of its discretion by the court below. The petitioner/defendants would not in any way suffer or be prejudiced by the leave being granted. Since it is open to them to raise all objections on merits while defending the suit; whereas if the permission is not granted as prayed for, it will once and for all deny justice to a public institution. I am also of the view that in this case substantial justice has been rendered by the court exercising its discretion to grant permission under Order 23, Rule 1, C.P.C. and on that count also, no interference is called for with the order of the court below.
7. The revision, therefore, fails and shall stand dismissed. No costs.