The petitioners filed the present Civil Revision Petition aggrieved against the order and decreetal order passed in I.A.No.313 of 2010 in O.S. No. 5 of 2004 on the file of the District Munsif Court, Hosur, dated 25.08.2010.
2. The brief facts of the case are as follows:-
The petitioners herein have filed O.S.No.5 of 2004 for the following reliefs.
A. For declaration of title in respect of the suit property in favour of the plaintiffs and defendants No. 7 , 9 to 14.
B. For a decree for permanent injunction against the defendants No.1 to 6 restraining them, their men, supporters, servants, agents and others claiming under them trespassing and interfering with the peaceful possession of the plaintiffs and defendants 7,9 to 14 over the suit property.
3. When the suit was in the trial stage, the respondents herein who are all defendants in the suit filed an application to file the additional written statement and the same was allowed by the lower Court.
4. Consequent to the filing of the additional written statement by the respondents herein/defendants, the petitioners herein have approached the Court to withdraw the suit with liberty to file a fresh suit on the following grounds.
(i) After the commencement of the chief examination and evidence on oath, to take unfair advantage, new facts are pleaded by the defendants by way of additional written statement. If the averments in the additional written statement are not traversed by petitioners/plaintiffs there is every likelihood of the suit failing by reason of these formal defects. The plaint pleadings cannot be amended at this stage but only recourse is to institute a fresh suit on the same cause of action overcoming all the cloud of doubt raised over our title, by defendants through additional written statement.
(ii) Due to the introduction of new facts through the additional written statement, a fresh cause of action arose, therefore it is just and necessary to withdraw the present suit and file a new suit. Therefore the petitioners/plaintiffs have filed the application in I.A.No.313 of 2010 to withdraw the suit with liberty to file a fresh suit.
5. Per contra, the respondents/defendants refuted the application filed by the Plaintiffs in their counter affidavit by stating as follows:-
Filing the additional written statement by the respondents/ defendants cannot be ground for the plaintiffs to withdraw the suit with liberty at this stage. The plaintiffs have also been cross examined as PW1 and admitted certain facts, in order to escape from the effect of such admission, the suit sought to be withdrawn. The plaintiffs can as well file an amendment petition or a rejoinder statement to meet the averments raised by these defendants in the additional written statement. Therefore, there is no justification for filing the above application and the same is liable to be dismissed.
6. After hearing both sides and perusal of pleadings and documents, the lower Court dismissed the application on the ground that the particulars which are mentioned by the defendants in their additional written statement are based on the documents which are all available in the Revenue Department. A copy of the said document can be obtained from the Revenue Department, which are generally maintained by the Revenue Department. Therefore there is no need for the petitioners/plaintiffs to withdraw the suit with liberty to file a fresh suit. Further, the lower Court observed that the plaintiffs could have filed the amendment petition to amend the plaint. Therefore, the lower Court permitted the petitioners/plaintiffs to withdraw the suit, however, refused to grant any relief.
7. When the matter came up for hearing today, the learned counsel for the petitioners/plaintiffs submitted that they have filed an application in I.A.No. 313 of 2010 in O.S.5 of 2004 before the District Munsif Court, Hosur, under Order 23 Rule (1) (3) (b). The said Rule reads as follows:-
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.
8. Further the learned counsel for the petitioners/plaintiffs advanced his argument on the ground that the respondents herein /defendants have filed an additional written statement only after the chief examination was over and such application was allowed on 31.03.2010. Therefore, the respondents herein, by virtue of said additional written statement, brought several new facts and therefore new cause of action arose that cannot be cured either by way of filing the reply to the additional written statement or by way of making the amendment in the plaint. The only re-course available for the plaintiffs is to withdraw the suit with liberty to file a fresh suit so that the plaintiffs are in a position to bring all the facts and include the new cause of action. In the present position if the petitioners continue with the trial, they would be unable to present formal proof in regard to the document and revenue records as these are not incorporated in the earlier plaint pleadings and proof of the same are very much necessary. In view of the additional written statement and new pleadings raised by the defendants, the petitioners seek to file an application to withdraw the suit with liberty to file a fresh suit.
9. On the other hand the learned counsel for the respondents/defendants submitted that that the petitioners without withdrawing the suit, they would have filed either reply to the additional written statement or they would have filed the amended plaint by way of proper application. It is further submitted as the suit was instituted in the year 2004 and it is pending for a very long time, the plaintiffs filed I.A.No.313 of 2010 seeking to withdraw the suit with liberty to file fresh suit is only to cover up the new point raised in the additional written statement, and to drag the matter. Therefore, the lower Court rightly rejected the relief of liberty to file a fresh suit on the same cause of action. Hence the learned counsel for the respondents/defendants pleaded that the Civil Revision Petition is liable to be dismissed.
10. This Court perused the provisions Order 23 Rule 1 (3) (b) of Civil Procedure Code, materials placed on record before this Court and heard both sides.
The provisions in Order 23 Rule 1 of CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied 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. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action.
11. Therefore in the present case, one of the point raised by the petitioners is that due to the filing of the additional written statement, new cause of action arose, therefore, it is just and necessary to make new plea in the plaint and with the new cause of action, it is not possible to make all these amendments which requires change in the cause of action in the present suit. Therefore, it is just and necessary to withdraw the present suit with liberty to file a fresh suit and in my considered view, the lower Court has not at all considered this point. Since the petitioners/plaintiffs pleaded that due to the filing of the additional written statement, a new cause of action arose and due to the said reason only, liberty was sought to file a fresh suit, but the same was rejected by the lower Court without proper appreciation of this fact.
12. Taking into consideration the fact that due to the filing of the additional written statement, new cause of action arose, this Court feels that it is just and necessary to provide opportunity to the petitioners to file a fresh suit. On a perusal of the impugned order, it is clear that the lower Court did not consider the matter in a proper perspective, while rejecting the liberty to the petitioner to file a fresh suit. The impugned order is vitiated on account of non application of mind to the relevant aspects of the matter. This position is clear from the fact that the lower Court did not consider the fact that the new cause of action arose after filing the additional written statement at the stage of after commencement of the trial.
13. For the reason discussed in the preceding paragraphs, I have no hesitation to hold that the impugned order is not sustainable and accordingly the Civil Revision Petition is allowed. The impugned order passed by the lower Court with regard to the rejection of filing a fresh suit alone is set aside. Consequently, the petitioners herein are granted liberty KRISHNAN RAMASAMY, J.
dpq to file a fresh suit as prayed in I.A.No.313 of 2010 in O.S.No.5 of 2004 within a period of 30 days from the date of receipt of a copy of this order. No costs.