Madras High Court
Devaraj vs Rajeswari on 27 April, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2015
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
CRP (NPD) No.3057 of 2007
Devaraj ... Petitioner
vs.
1.Rajeswari
2.Ranjidam
3.Sampathkumari
4.Kamala ... Respondents
Civil Revision Petition is filed against the order dated 10.11.2006 made in I.A.No.189 of 2006 in AS.No.45 of 1999 on the file of the Additional Subordinate Court, Tindivanam.
For Petitioner : Ms.N.Mala
For Respondents : No representation
O R D E R
The fourth respondent in AS.No.45 of 1999 is the revision petitioner herein. This civil revision petition is filed against the order, thereby allowing the appellant to withdraw the appeal with liberty to file fresh suit on the same cause of action.
2.According to the petitioner herein, he is not aggrieved by the permission granted to the appellant for withdrawing the appeal, but seriously aggrieved by that part of order granting permission for filing fresh suit on the same cause of action.
3.For the purpose of easy understanding, the parties are referred to as per their rank in O.S.No.104/1992.
4.Few facts, which are relevant for consideration herein are as follows: The subject matter of the suit in O.S.No.104/1992 arising out of which is the appeal, originally belonged to one Rajambal, who was the mother of the plaintiff and the defendants 1 to 3. After Rajambal died intestate on 6.1.1985, the plaintiff and the defendants succeeded to the property and the same was partitioned among them into 1/4th share each. During the life time of Rajambal, she agreed to sell the property to the fourth defendant for Rs.50,000/- and Rajambal received Rs.39,000/- as advance out of Rs.50,000/- and the mortgage over the property was discharged out of the amount so received and the title deed was handed over to the fourth defendant. Before executing the sale deed, Rajambal died. After her death, the fourth defendant approached the plaintiff and the defendants 1 to 3 and asked them to execute the sale deed in his favour, after receiving the balance sale consideration and also paid them the balance sale consideration. Though the defendants 1 to 3 have been ready to execute the sale deed in favour of the fourth defendant, the plaintiff did not choose to come forward to join them.
5.Thereafter, the plaintiff filed the suit in OS.No.104/92 for declaration of the plaintiff's title and possession and for permanent injunction restraining the defendants from interfering with her possession and enjoyment of the suit property. While the defendants 1 to 3 did not contest the suit, the fourth respondent seriously contested the suit. According to the written statement filed by the fourth defendant, the plaintiff has no right over the suit property and the plaintiff after the execution of the sale agreement in favour of the fourth defendant is estopped from making any claim in respect of the suit property.
6.Pending suit, the plaintiff came forward with IA.906/97 for amending the plaint for including alternative prayer for partition of her < share in the suit property and the said IA was dismissed. Aggrieved against the same, the plaintiff filed CRP.No.423/98. Pending revision, the suit was dismissed by saying the plaintiff though entitled to 1/4th share in the suit property, is dis-entitled to get the relief of permanent injunction. Aggrieved against the same, the plaintiff preferred AS.45/1999.
7.Pending appeal, the plaintiff has come forward with IA.No.189/2006 under Order 23 Rule 1 CPC for withdrawal of the appeal with liberty to file fresh suit for partition on the same cause of action. This application was seriously opposed by the fourth defendant. According to him, the trial court has not created any right on the appellant/plaintiff and the trial court has not declared any independent right on the plaintiff to enforce the same by way of independent partition suit. But the lower appellate court has after due contest allowed the application, thereby permitting the plaintiff to withdraw the appeal with liberty to file fresh suit on the same cause of action. Hence, this Civil Revision Petition before this court by the contesting fourth defendant.
8.The learned counsel for the petitioner/contesting defendant would seriously argue before this court that the permission granted to the plaintiff to file fresh partition suit will take away the right created on the fourth defendant by virtue of judgment and decree of the lower court and the application belatedly filed at the appellate stage to go for partition suit will lead to second round of litigation. The learned counsel for the petitioner would also contend that such petition to withdraw the appeal with liberty is not maintainable at the appellate stage. The learned counsel for the petitioner, in support of her contentions raised against the legality of the impugned order has also cited the following judgments of the Hon'ble Supreme Court and our High Court: (i)JT 1999 (2) SC 468 (R.Rathinavel Chettiar and another v. V.Sivaraman and others) (ii)2003-4.LW.453 (Duraikannu and others v. Malayammal) and (iii)(2006) 4 MLJ 919 (Murugesan v. Alamelu Ammal and others).
9.Heard the learned counsel for the petitioner. Inspite of due service of notice, there is no representation on behalf of the respondents either in person or through their learned counsel on record.
10.The contention raised herein against the maintainability of the petition at the appellate stage is liable to be rejected, in view of the principle laid down by the Hon'ble Supreme court and the Division Bench of our High court and Bombay High court in the following judgments. The Apex Court in the decision reported in JT 1999 (2) SC 468 (R.Rathinavel Chettiar and another v. V.Sivaraman and others) (cited supra) after referring to various decisions, was of the view that it cannot be allowed as a matter of course, but has to be allowed rarely when a strong case is made out. The Division Bench of Our High Court in the judgment reported in AIR 1924 Madras 79 (Dharma Raja v. K.M.Pethur Raja and others) and the Bombay High court in AIR 1925 Bombay 425 (Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel & others) are inclined to permit the petitioner therein to withdraw the suit at the appellate stage. Similar view is also expressed in the judgment reported in 2003-4.LW 453 (Duraikannu and others v. Malayammal) cited on the side of the petitioner. The legal objection is hence negatived.
11.On facts, the learned counsel for the petitioner has drawn the attention of this court to the Supreme Court decision in JT 1999 (2) SC 468 (R.Rathinavel Chettiar and another v. V.Sivaraman and others) and also to the judgment of the learned single judge of this Court reported in (2006) 4 MLJ 919 (Murugesan v Alamelu Ammal and others) in support of her contention that withdrawal of the suit, where the rights of the parties with regard to any of the matters in controversy in the suit has been finally decided, with liberty to file fresh suit at the appellate stage is likely to deprive the defendant of the findings rendered by the trial court. This Court cannot dispute the principle laid down by Apex Court and our High court in the decisions cited supra. However, the same are not applicable to the facts and circumstances involved herein.
12.In the present case, the plaintiff sought for larger relief of absolute title and injunction. While the suit for larger relief was dismissed, the trial court rendered a specific finding that the plaintiff is entitled to 1/4th share in the suit property and the defendants are entitled to 3/4th share. In the event of the appeal being withdrawn with liberty to file fresh suit for partition of the plaintiff's 1/4th share, the same will in no way affect the right, title and interest of the contesting defendants, insofar as their >th share is concerned. The relief sought for in the application is only to withdraw the appeal, with liberty to file the suit for partition. It is clearly stated so in the affidavit filed in support of the application. The permission sought for is only to withdraw the appeal and not the suit. On such withdrawal of the appeal, the findings rendered by the trial Court holds good. The right of the defendants if any to contest the correctness of such findings is independent of the plaintiff's right to go for partition suit on the basis of the findings rendered by the trial court and not on the basis of the original cause of action. To that extent, the impugned order requires modification and the permission granted by the lower appellate court is hence restricted to file fresh suit for partition. As and when the same is filed, the petitioner/fourth defendant is at liberty to raise all the objections available to him both on facts and in law.
13.In the result, the impugned order made in I.A.No.189/2006 in AS.No.45/1999 passed by the Additional Sub Judge, Tindivanam is modified by permitting the appellant/first respondent herein to withdraw the appeal with liberty to file fresh suit for partition, with further liberty given to the fourth respondent/petitioner herein to contest the same by raising all the objections available to him both in law and on facts. The Civil Revision Petition is accordingly ordered. No costs.
rk 27-04-2015
Index:Yes/No
Internet:Yes/No
To
The Additional Sub Judge, Tindivanam.
K.B.K.VASUKI, J.
rk
CRP (NPD) No.3057 of 2007
27.04.2015.