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1. This matter has been posted before us on an order of reference made by Sethuraman, J., as he felt that there was a conflict between the decision of Balasubrahmanyan, J. in Charles Samuel S. (died) v. Board of Trustees, Davaswam Board Office, Suchindram, Kanyakumari (1978) 91 L.W. 320 and that of Varadarajan, J., as he then was, in N. Lakshmanan Nadar v. Board of Trustees, Devasthanam Board Office, Suchindram Kanyakumari C.M.P. No. 13471 of 1975 in S.A. No. 1444 of 1972.

2. Before dealing with the point in respect of which a conflict is said to have arisen, it is necessary to set out briefly, the facts of this case. The respondent herein filed a suit for declaration of his title to the suit property comprised in S. No. 379/2, Velampatti village and for an injunction restraining the petitioner-defendant from interfering with his possession and enjoyment of the same. The plaintiff's case was that by means of a registered sale deed, dated 24th June, 1953, he purchased from one Seeni Thevar the suit property, which was paimash No. 26 subsequently correlated during the survey as Section No. 379/2. The suit was resisted by the defendant on the ground that the suit property comprised in S. No. 379/2 ccrresponded to old paimash Nos. 69 (p) and 35 (p), that those paimash numbers belonged to his forefather's and that they were allotted to him in a partition between him and his brothers. Thus, the main and substantial controversy before the trial Court was, whether S. No. 379/2 in respect of which declaration of title was sought for by the plaintiff corresponded to the old paimash No. 26, as alleged by him, or whether it corresponded to old paimash No. 69(p) and 35(p), as alleged by the defendant. The trial Court has, after analysing the evidence, dismissed the respondent-plaintiff's suit on the main ground that he has not established that the suit S. No. 379/2 corresponded to old paimash No. 26. The respondent-plain tiff has preferred an appeal, A.S. No. 6 of 1979 before the Court of the Subordinate Judge, Madurai.

3. During the pendency of that appeal, he has filed an application I.A. No. 602 of 1979 under Order 23, Rule 1(3) of the Code of Civil Procedure for permission to withdraw his suit with liberty to file a fresh suit on the same cause of action. In the affidavit filed in support of that application, he stated that steps were taken by him to summon the correlation register from the Assistant Settlement Officer, Madurai, for the purpose of establishing the correlation between the suit S. No. 379/2 and the paimash No. 26, that, the correlation register had not, however, been produced on the ground that it was filed in another case pending before the High Court, that hence he was not in a position to prove the correlation at the trial stage that unless he was able to prove the correlation he could not also succeed in the appeal, and that therefore he may be permitted to withdraw the suit, with liberty to file a fresh suit on the same cause of action, after the receipt of the correlation register from the High Court by the Assistant Settlement Officer, Madurai.

10. Though there is an apparent conflict between the two views--one holding that the non-issue of a statutory notice prior to suit is a formal defect and the other holding that the non-issue of such notice is not a formal defect--it is not necessary for the purpose of this case to resolve that conflict. Here the suit has been dismissed on merits, namely, on the ground that the plaintiff has not established his case that the suit property S. No. 379/2 corresponded to paimash No. 26 admittedly owned by him. Further, the decisions referred to above dealt with the provisions contained in Order 23, Rule 1(3)(a) of the Code. But we are now concerned in this case with the scope of Order 23, Rule 1(3)(b) of the Code. Thus the only question that arises for consideration in this case is, whether the failure of the suit on merits or the inability of the plaintiff to prove his case by adducing necessary evidence can be taken as a "sufficient ground" for the grant of leave to withdraw the suit with liberty to file a fresh suit under Order 23, Rule 1(3){b) of the Code.

16. On the facts of the present case, it cannot be said that the plaintiff was not in a position to produce the necessary evidence before the trial Court. Even if the plaintiff was not able to get at the original correlation register, he could have obtained relevant extracts therefrom and produced the same as secondary evidence. There are also other modes of proving the fact of correlation and one is by examining a Surveyor connected with the Department of Survey to find out the corresponding paimash Number for the suit No. 379/2. It is not possible therefore to say that the plaintiff was not in a position to establish his cy.se at all before the trial Court. If the attempt of the plaintiff to have the suit withdrawn, with liberty to file a fresh suit is only to have an opportunity to establish the correlation, he could have asked for such an adjournment before the trial Court for that purpose or before the appellate Court itself, without withdrawing the suit and filing a fresh suit for the same purpose. Even at the appellate stage, he could have asked for the appointment of a Surveyor as Commissioner to correlate paimash No. 26 to the present survey number and to locate the same on ground or he could have sought an adjournment of the appeal so as to enable him to get the original correlation register or produce extracts from the original register for the purpose of establishing his case at the stage of the appeal. The mere fact that the plaintiff was not able to secure the necessary evidence at the trial stage to prove his case is no ground for invoking Order 23, Rule 1(3) of the Code of Civil Procedure.