Madras High Court
Esanya Madalayam Religious ... vs Tiruvannamalai Sevasramam ... on 6 April, 1999
Equivalent citations: (1999)2MLJ360
ORDER E. Padmanabhan, J.
1. These two revisions have been preferred against the fair and decretal order respectively passed in I.A.No. 513 of 1998 in O.S.No. 160 of 1997 and I.A.No. 542 of 1998 in O.S.No. 136 of 1997 on the file of the Additional District Munsif Court-I at Thiruvannamalai. By the said order, the court below rejected the application filed under Order 23, Rule 1 and of C.P.C. to withdraw the suit with liberty to file a fresh suit on the same cause of action.
2. Heard Mr. R. Krishnamurthy, learned senior counsel appearing for the revision petitioner and Mr. Sekar appearing for the respondent caveator. The revision petitioner initially filed the suit O.S.No. 136 of 1997 against the respondent herein. Closely following the earlier suit O.S.No. 136 of 1997, the revision petitioner also filed another suit O.S.No. 160 of 1997 seeking identical relief of permanent injunction. The applications for temporary ad interim injunction have been dismissed after contest.
3. Thereafter, I.A.Nos. 513 of 1998 and 542 of 1998 were taken out by the plaintiff in both the to withdraw both the suits with liberty to file a fresh suit on the same cause of action. It is fairly admitted that the defendant is in possession of the suit property and that being so, the very institution of the suit seeking the relief of permanent injunction is rather extraordinary and probability ill-advised. It is being pointed out by the learned senior counsel that the respondent has claimed a fresh lease with effect from 21.2.1994 and, therefore, the respondent is entitled to continue in possession upto 2006 or till the expiry of the current lease. On coming to know that the lease deed dated 21.2.1994 is without authority and invalid, the petitioner has sought for withdrawal of the suit with liberty to file a comprehensive suit seeking to cancel or set aside the lease deed, recovery of possession and other reliefs as well. We are not going to decide the merits of such claim in this case.
4. Admittedly the suits have been filed and the same are pending since 1997 and being contested. The court below rejected the application on the ground that the affidavit filed in support of both the applications do not disclose the formal defect. But, according to the court below, it is an inherent defect and it cannot be rectified. The court below has taken the view that no sufficient ground or cause has been shown for granting leave to withdraw the suit to file a fresh suit. The court below had lost sight of the provisions namely Order 23, Rule 1, Clause (iii), (b) of C.P.C. which provides:
Where the court is satisfied:
(b) that there are sufficient grounds for allowing the plaintiff to institute a suit for the subject matter of a suit or part of a claim, leave could be granted.
It is not as if, for the formal defect alone leave could be granted with liberty to file a fresh suit.
5. Reliance is placed upon the decision of this Court is Kokila and Anr. v. K.S Bhoopathy and five Ors. , where C. Shivappa, J. as he then was after considering earlier case law and in particular as the decision of the Apex Court in the case of Baniram v. Gaind , held that it would be appropriate to permit withdrawal of the suit with liberty to file a fresh suit for declaration of title for sufficient ground and that would be a valid ground as well. The learned Judge held thus:
5. In T.K. Prabhawati v. C.P. Kunhathabi Umma A.I.R. 1981 Ker. 179, the Kerala High Court took the view that the wider discretion granted to the court under Clause (b) of Order 23, Rule 1(3) of the Code of Civil Procedure, to examine the sufficiency of the ground urged in support of every request for withdrawal is intended to advance the cause of justice. Failure of the plaintiff to sue on the strength of tile was a mistake and mistake was "sufficient ground" within the meaning of Order 23, Rule 1(3)(b), C.P.C. justifying grant of permission to withdrawn.
6. Even in Kamayya v. Pappayya A.I.R. 1918 Mad. 1287 (F.B.), Spencer, J. had observed thus:
In the present case the permission was granted in order to permit the plaintiff to redraft their plaint in such a manner as to contain certain necessary allegations for indicating more clearly what their father's title was, and this appears to me to be a good ground for the order in the circumstances of the case.
7. In Baniram v. Gaind the Supreme Court held thus:
Having considered the fact that non-pleading of a point may prove a technical impediment and may result in the dismissal of the appeal which may impede a fresh adjudication if a point is to be made though belated, the Supreme Court considers it just proper in the interests of justice to permit the appellant-plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action or on a different cause of action, subject to the payment of Rs. 1,000 by way of costs in addition to all other costs.
8. In view of this settled position, it is appropriate to permit withdrawal of the suit with a liberty to file a fresh suit for declaration of title which they ought to have done at the initial stage. By withdrawal, the respondents should not be deprived of the benefit of usage of that passage till the final adjudication. If there are valid defences, they can raise all such defences. For the lapses on the part of the appellants, since the respondents had to face the order once again, of course, for a considerable time, it is appropriate to award a cost of Rs. 2,000 to be deposited by the appellants before filing of a fresh suit, payable to the respondents. With the above observation, the C.M.P.No. 12085 of 1997 seeking permission for withdrawal of the suit, is allowed and the appellants are permitted to withdraw the suit with a liberty to file a fresh suit for declaration on the same cause of action.". I am in respectful agreement with the view taken by the learned Judge.
9. Mr. Sekar, learned Counsel for the respondent would vehemently contend that the defect is not formal. But he is unable to meet the contention that sufficient ground has been shown by the plaintiff revision petitioner.
10. When admittedly defendant is in possession of the property relief of injunction will be normally denied. That apart, the plaintiff has to seek other comprehensive reliefs as well which would constitute sufficient ground for allowing plaintiffs to institute fresh suit with respect to the same subject matter. However, admittedly the suit is pending since 1997 and such relief could be granted on condition that the petitioner pays a cost of Rs. 1,000 in each suit.
11. The revision petitions are allowed. The orders of the court below are set aside and I.A.No. 513 of 1998 as well as I.A.No. 542 of 1998 are allowed on condition that the petitioners shall pay a cost of Rs. 1,000 in each application to the respondent by way of demand draft drawn on a Bank payable at Tiruvannamalai and hand over the same to the counsel for the respondent in these revision petitions and file Memo on or before 28.4.1999.
12. In the event of the petitioner failing to pay costs, these two revisions will stand dismissed. Conseqsuently C.M.P.Nos. 227 and 228 of 99 are dismissed.