Madras High Court
A.Balakrishnan vs Murugeswari on 29 June, 2009
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:29/06/2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH C.R.P.(MD) No.185 of 2008 and M.P.(MD) No.1 of 2008 1.A.Balakrishnan 2.A.Ayyappan 3.A.Thirumalai 4.A.Sankar ... Petitioners vs. Murugeswari ... Respondent PRAYER Civil Revision Petition filed under Article 227 of Constitution of India, against the order dated 21.07.2007 made in I.A. No.393 of 2007 in O.S. No.379 of 2005 on the file of the Additional District Munsif, Srivilliputtur. !For Petitioner ... Mr.M.Ashok Kumar ^For Respondent ... Mr.M.Thirunavukkarasu * * * * * :JUDGMENT
The plaintiffs are the petitioners in the revision. They have filed a suit in O.S. No.379 of 2005 for permanent injunction against the respondent herein restraining the respondent from interfering in the peaceful possession and enjoyment of the suit property. The suit has been filed in O.S. No.379 of 2005 on the file of Additional District Munsif, Srivilliputtur. The written statement has been filed on 16.10.2005 stating that it is the defendant who is in possession of the suit property. Thereafter, the petitioners filed an application in I.A. No.1612 of 2005 for early hearing alongwith the memo not to press the suit. However the said application was dismissed. Thereafter, an application has been filed in I.A. No.393 of 2007 seeking leave to withdraw the suit with liberty to file the suit under Order 23 Rule 1 relied with 151 of C.P.C. The said application was dismissed by the Trial Court and having aggrieved against the same, the present revision has been filed.
2. The learned counsel for the petitioners submitted that no prejudice would be caused to the respondent by allowing the application to withdraw the suit. According to the learned counsel that the application may be allowed on terms. The learned counsel also relied upon the judgment of the Supreme Court in AIR 1986 SC 1009 and another judgment reported in 2006 AIR Calcutta 24 in support of his contention.
3. On the other hand, the learned counsel for the respondent submitted that the application is belated and the earlier application filed for fixing for an early date for the disposal of the suit, with a memo not pressing the suit was dismissed alongwith the memo. According to the learned counsel there is no formal defect and therefore Order 23 Rule 1 cannot be invoked by permitting the petitioners to withdraw the suit.
4. I have heard the counsels for the parties. As stated above the suit is filed for permanent injunction. Even in the written statement the respondent has clearly stated that it is he who is in possession of the suit property. A perusal of the affidavit filed in support in I.A. No.393 of 2007 shows that the application has been filed on the ground that the defendant has taken a stand in the written statement about the possession and therefore in view of the possession being with the defendant the suit will have to be permitted to be withdrawn with liberty to file fresh suit on the same cause of action. Order 23 Rule 1 provides for withdrawal of the suit when there is a formal defect. The formal defect would only mean a procedural defect. Therefore a defect which goes to the root of the plaintiffs claim is not a formal defect. A formal defect can be one of not obtaining permission of the Court before filing the suit, failure to disclose the cause of action, mis-joinder of parties or defects pertaining to the valuation. Therefore while invoking Order 23 Rule 1 the Court has to see as to whether there is any formal defect.
5. Similarly in so far as the permission to be given on other sufficient ground, it should be construed on the principle of ejausdem generis which would only mean that the same is synonymous with formal defect. Hence the failure of the plaintiffs to prove his case cannot be a ground for withdrawing the suit with liberty to file another suit on the same cause of action. As seen above in the present case, if the plaintiffs are permitted to withdraw the suit then the defect would be put to hardship. In another words by allowing to withdraw the suit, the petitioners are seeking to amend his case in so far as the factum of possession is concerned. In such a case, the relief that can be sought for is not one of withdrawal of the suit but other appropriate relief including application seeking amendment. In the judgment reported in 2006 5 CTC 43 in N.Thiyagarajan and another vs. Veerattanathan, it has been held that unless the plaintiffs are able to satisfy the Court that the defects are formal then the leave cannot be granted under Order 23 Rule 1. Similarly in 2006 5 CTC 74 in C.Bagyalakshmi vs. P.Irulappan and another, the Hon'ble High Court has held that filing of an application to withdraw the suit on the ground of discrepancies in the schedule of the properties cannot be a ground under Order 23 Rule 1. The Hon'ble High court has observed that under those circumstances, the remedy of the plaintiffs is to file the appropriate application seeking amendment. Similarly the judgment reported in 2007 5 CTC 84 in Murugesan vs. Alamelu Ammal and others, it has been held that the principle laid under Order 23 Rule 1 is founded on public policy to prevent initiation of successive suits. In the judgment reported in 2006 1 MLJ 334 in Radhagopalakrishnan vs. M.Rajendran and others, it has been held, it is for the plaintiffs to show that there is a formal defect and when the court below considered the said contention as one of a defect which is not formal then the relief cannot be granted. The Hon'ble High court has also held that under such circumstances the revision under Section 115 of C.P.C is not maintainable since the said order does not finally decide the list between the parties. Therefore this Court is of the opinion that the order passed by the Court below does not call for any interference.
6. The learned counsel for the petitioners relied upon two judgments reported in AIR 1986 SC 1009 and 2006 AIR CALCUTTA 204 in support of his contentions. On a perusal of the judgment of the Apex Court rendered, reported in AIR 1986 SC 1009 it is seen that question involved in the said case was the scope of Section 148 and the implication of non-payment of cost while allowing the application under Order 23 Rule. In so far as the judgment reported in 2006 AIR CALCUTTA 204 is concerned the facts contained in the said case are entirely different. In the said case the suit was filed based upon Transfer of Property Act. Subsequently liberty was sought to withdraw the suit since the defendant took the plea that only the tenancy law was applicable. Therefore the court has given the permission to the plaintiffs to withdraw the suit with liberty to file the same before the tenancy Court. Hence this Court is of the opinion that the said judgment relied on by the petitioners do not support the case of the petitioners.
7. While dismissing the revision, however, liberty is given to the petitioners to work out their remedy by filing appropriate application offered under Order 6 Rule 17 or otherwise. With this observation, the revision is dismissed. If such an application is filed, the Trial Court is directed to dispose of the same on merits and in accordance with law without reference to the order passed by this Hon'ble High Court. Consequently, the connected Miscellaneous petition is closed. No costs.
cs To The Additional District Munsif, Srivilliputtur