Madras High Court
Sattur Yadhava Community vs Navaneethakrishnan @ Ambarisan on 27 August, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.08.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(MD)No.1542 of 2014 & M.P.(MD) No.1 of 2014 Sattur Yadhava Community Rep. through its Member, Chellaperumal S/o.U.Pitchaiah Konar, No.32, Sivananda Bajana Madam North Street, Sattur, Virudhunagar District. .. Petitioner Vs. Navaneethakrishnan @ Ambarisan .. Respondent Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order, dated 30.06.2014, made in I.A.No.332 of 2014 in O.S.No.95 of 2009, on the file of Principal District Court, Virudhunagar District at Srivilliputhur. !For Petitioner : Mr.A.Sivaji ^For Respondent : Mr.A.Arumugam :ORDER
This Civil Revision Petition has been filed to set aside the order, dated 30.06.2014, made in I.A.No.332 of 2014 in O.S.No.95 of 2009, on the file of Principal District Court, Virudhunagar District at Srivilliputhur.
2.The revision petitioner herein is the plaintiff, whereas the respondent herein is the defendant in the suit in O.S.No.95 of 2009 on the file of Principal District Court, Virudhunagar District at Srivilliputhur.
3.The petitioner filed the suit in a representative capacity praying for declaration that the suit property is a trust property consituted for the benefit of Yadhava Community people and managed by elders of Yadhava Community and no individual has any right or title over the same and for consequential relief.
4.The petitioner filed I.A.No.200 of 2009 under Order 1 Rule 8 of C.P.C., for permission to proceed with the suit in a representative capacity as a Member of Yadhava Community on 12.10.2011. The said I.A.No.200 of 2009 was dismissed as not pressed. The petitioner, meanwhile filed another application in I.A.No.610 of 2011 in month of September 2011, for permission to file the suit in a representative capacity for the general welfare of Yadhava Community. This application was filed under Section 92 of C.P.C. The learned Principal District Judge, Virudhunagar District at Srivilliputhur, by the order dated 31.07.2012, disposed the said application holding that Section 92 of C.P.C., is not applicable to the facts of the case and only Order 1 Rule 8 of C.P.C. is applicable and permitted the petitioner to suitably amend the said application.
5.Against the order, dated 31.07.2012, the respondent has filed C.R.P.(MD) No.2082 of 2012 before this Court, which was dismissed on 19.03.2014, confirming the order of the learned Principal District Judge, Virudhunagar at Srivilliputhur and directed the learned Judge to dispose of the suit in O.S.No.95 of 2009 as expeditiously as possible within a period of four months from the date of receipt of a copy of this order.
6.The petitioner filed I.A.No.332 of 2014 under Order 23 Rule 1 and Section 115 of C.P.C., seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The respondent resisted the said application. The learned Principal District Judge, Virudhunagar at Srivilliputhur, by the order dated 30.06.2014, dismissed the application in I.A.No.332 of 2014. Against the said order, the petitioner has filed the present civil revision petition.
7.The learned counsel for the petitioner argued that some technical defect has been crept in and the same cannot be rectified by amendment. The property belongs to entire Yadhava Community and managed by different elders at different time and hence, the defect crept in. The lapse on the part of some of the persons in-charge of administration should not be put against the entire community. The learned Judge erred in dismissing the application holding that the defect could be rectified by amendment. The learned Judge failed to consider and apply the ratio in the Judgments relied on by the learned counsel for the petitioner in the proper perspective.
8.On the other hand, the learned counsel for the respondent argued that the application itself is not maintainable under Order 23 Rule 1 C.P.C. The petitioner can very well rectify the defect if any, by amendment of the earlier petition. The petitioner has come out with the present application only to drag on the proceedings and to get over the direction given by this Court to dispose the suit in O.S.No.95 of 2009 within four months from the date of receipt of the order, dated 19.03.2014, made in C.R.P.(MD) No.2082 of 2012.
9.The learned counsel for the respondent submitted that the petitioner is not ready and prepare to conduct the trial of the suit.
10.The following Judgments are relied on by the learned counsel for the petitioner to substantiate his submissions.
(i) S.Balasubramanian Vs. B.K.Krishnamurthy and Rajni Foundation Pvt.
Ltd. reported in MANU/TN/0304/2011 [O.S.A.No.88 of 2010, dated 11.02.2011]. The relevant portion is extracted as under:
"20. ..... The learned Single Judge, while allowing the application under Order XXIII, Rule 1 CPC, rightly found that irrespective of whether the plaintiff was entitled to specific performance or not, he would atleast be entitled to recovery of money, if he had actually paid any money to the father of the appellant/first defendant and if the claim is within the period of limitation. The learned single Judge also rightly found that a person, who claims to have made payment of a sum of Rs.13,73,942/- on 22.7.1999 and also claims to have made payment of 50% of the future installments, cannot be non-suited and driven to go empty handed, if his claim is actually true.
21. So far as with regard to the claim of first respondent/plaintiff is concerned, the same can be decided only in trial. Since the prayer in C.S.No.711 of 2007 is defective, preventing the first respondent/plaintiff from withdrawing the suit, which was filed with defective prayer and giving him liberty to file fresh suit on the same cause of action would only cause injustice to him.
22. So far as the contention of the learned counsel appearing for the appellant that the prayer for specific performance is barred by limitation is concerned, it is needless to say that the said defects can be raised by the appellant/first defendant in the suit filed by the first respondent/plaintiff for specific performance in C.S.No.266 of 2010, which is pending before this court. Therefore, merely because the liberty was given to the first respondent/plaintiff to file a fresh suit on the same cause of action, that will not prevent the appellant/first defendant from raising the defences available to him. Therefore, the first respondent/plaintiff made out sufficient grounds for withdrawing the suit in C.S.No.711 of 2007 with liberty to file a fresh suit on the same cause of action.
23. The learned single Judge has exercised the discretion vested under Order XXIII, Rule 1(3) Code of Civil Procedure after getting satisfied that there are sufficient grounds, permitted the first respondent/plaintiff to withdraw the suit with liberty to file a fresh suit."
(ii)Thangapandian and another Vs. Sri Muthumariamman Idol [1998 (III) CTC 454]
(iii) Rajamanickam Vs. P.Dhandapani and Others [2013 (5) CTC 385], wherein in paragraph Nos.35 and 36, it has been held as follows:-
"35.I would like to agree with his submission because Order 23, Rule 1(3)(b) is an independent clause. If there is any formal defect, as per Order 23, 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. No. 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."
(iv) Bhagwati Developers Private Ltd. Vs. Peerless General Finance Investment Company Ltd. and Others [AIR 2013 SC 1690], wherein in paragraph Nos.23 to 25, it has been held as follows:-
"23.We do not find any force in the submissions made by Shri Desai, to the effect that in view of Rule 88(2) of the Rules 1959, the CPC had no application to the facts of the instant case. Rule 88(2) reads, that a petition under Sections 397 and/or 398 of the Act 1956, shall not be withdrawn without the leave of the court, and therefore, as per Shri Desai, the provisions of the CPC, as have been applied in the case on which Shri Gupta has relied upon, have no application in the instant case. Rule 6 reads as under:
"Save as provided by the Act or by these rules the practice and procedure of the Court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the Court"
24.It has been submitted by Shri Ashok H.Desai, learned senior counsel appearing on behalf of the respondents, that the phrase "so far as applicable", excludes the application of the CPC where a particular procedure is prescribed in the Rules itself, and as Rule 88(2) provides that any withdrawal will only be permitted with the leave of the court, no further requirement can be presumed.
25.We do not agree with such an interpretation, particularly with respect to a phrase, which has been considered by this Court time and again."
(v) Registrar, M.S.University Vs. Suhura Beevi Educational Trust [AIR 1995 Madras 42], wherein in paragraph No.11, it has been held as follows:-
"11. ...... The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself is no licence to the plaintiff to claim a right to do so to the detriment of the legitimate rights of a party-defendant behind its back and with ulterior motive and oblique purpose and courts could not be held to be powerless to prevent such onslought on the institute of administration of justice. Therefore the question for consideration would be as to whether the plaintiff acted bona fide in the move to abandon a part of the claim (which is not the fact in this case) or withdrawing the suit so far as the 3rd defendant is concerned in O.S. No.9188 of 1982. ....."
(vi)K.Chinna Varia Thevar Vs. S.Vaira Thevar [AIR 1983 Madras 160], wherein in paragraph No.16, it has been held as under:
"16.The case before us is a fortiori one, as the entire evidence in the case has been considered by the trial Court and it has been found by the trial Court that sufficient evidence has not been adduced to establish the plaintiff's case that the suit property was originally comprised in paimash No.26. If, according to Yahya Ali J. even at the trial stage the plaintiff cannot be permitted to withdraw the suit, when he finds that the evidence adduced by the plaintiff is insufficient to establish the case propounded by him, we do not see how he can be permitted to withdraw the suit at the appellate stage, after the trial Court has considered the entire evidence on merits and held that the evidence adduced is insufficient to establish the plaintiff's case."
11.It is relevant to refer Order XXIII Rule 1 (3) (A) and (B) of C.P.C., which reads as follows:
"(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) 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, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim."
12.A reading of this provision reveals that if the Court is satisfied that a suit must be failed by reason of some formal defect or if there are sufficient grounds for allowing the plaintiff to withdraw the suit with liberty to file a fresh suit permission can be granted on such terms as it thinks fit. In the present case, the learned Judge while disposing I.A.No.610 of 2011 held that the said application is not maintainable under Section 92 of C.P.C. and that the petitioner ought to have filed the application under Order 1 Rule 8 C.P.C. and permitted the petitioner to amend the application and plaint suitably. The plaintiff has come out with the above application with the plea that by amending the plaint, the defect could not be rectified. The learned Judge failed to consider this aspect. Further, the learned Judge did not consider whether the petitioner has given sufficient reason for permission to withdraw the present suit and file a fresh suit on the same cause of action. In the Judgment reported in 2013 (5) CTC 385 [Rajamanickam Vs. P.Dhandapani and Others], this Court held that both the above grounds are independent each other and the trial Court must consider these grounds while deciding the issue. Further, in the Judgment reported in 1998 (III) CTC 454 [Thangapandian and another Vs. Sri Muthumariamman Idol], this Court held that a public institution should not suffer due to lapse of Administrators/In-charge from time to time.
13.In the Judgments reported in S.Balasubramanian Vs. B.K.Krishnamurthy and Rajni Foundation Pvt. Ltd. [MANU/TN/0304/2011 [O.S.A.No.88 of 2010, dated 11.02.2011]] and Bhagwati Developers Private Ltd. Vs. Peerless General Finance Investment Company Ltd. and Others [AIR 2013 SC 1690], the grounds for exercising the power under Order XXIII Rule 1 had been enumerated. The Judgments reported in Registrar, M.S.University Vs. Suhura Beevi Educational Trust [AIR 1995 Madras 42] and K.Chinna Varia Thevar Vs. S.Vaira Thevar [AIR 1983 Madras 160], are not applicable to the facts of the present case.
14.I have heard the arguments of Mr.A.Sivaji, learned counsel for the revision petitioner and Mr.A.Arumugam, learned counsel for the respondent and carefully perused the materials on record and the Judgments relied on by the learned counsel for the parties.
15.A reading of the impugned order reveals that the learned Judge failed to consider as to whether the suit would fail due to defect in the plaint and fail to consider whether the petitioner has given sufficient cause for withdrawing the suit with liberty to file a fresh suit. The learned Judge came to the conclusion that the defect could be rectified by amendment, is not inconsonance with the provisions of C.P.C. and also well settled judicial pronouncement. The learned Judge failed to exercise the power conferred on him by statute. Admittedly, there is a formal/technical defect in the cause of action as well as in the relief sought for. Further, the petitioner has explained as to how the defects crept therein. These grounds are sufficient reasons to exercise the power under Order XXIII Rule 1(3)(B) C.P.C., granting permission to the plaintiff. The impugned order suffers from irregularity for not exercising the power conferred on the learned Judge. This warrants interference by this Court.
16.For the above reason, the impugned order dated 30.06.2014, made in I.A.No.332 of 2014 in O.S.No.95 of 2009, passed by the learned Principal District Judge, Virudhunagar District at Srivilliputhur, is set aside and the matter is remitted back to the learned Principal District Judge, Virudhunagar District at Srivilliputhur, for fresh consideration on merits and in accordance with law.
17.With the above direction, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
To The Principal District Court, Virudhunagar District at Srivilliputhur.