Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
2.The petitioner herein who is the plaintiff in O.S.No.18/2008 on the file of the Subordinate Court at Nilgiris, Udhagamandalam has come forward with the present Civil Revision Petition challenging the order dated 06.04.2016 made in I.A.No.612/2016 in O.S.No.18/2008, wherein the application filed under Order 23 Rule 1 CPC was allowed partly by permitting the plaintiff to withdraw the suit, without granting permission to file a fresh suit on the same cause of action.
3.The learned counsel appearing for the petitioner would submit that the petitioner herein as plaintiff has filed the suit in O.S.No.18/2008 for declaration of title and injunction in respect of 12 cents stating that the principal had purchased the property along with his brother under the sale deed dated 10.08.1965. Thereafter, on partition between the principal and his brother, the property was allotted to the principal. While so, now the vendor's son and grandson attempted to interfere with the peaceful possession and enjoyment of the property and hence, the revision petitioner/plaintiff was constrained to file the suit for declaration of title and injunction, through his power of attorney, who is none other than his son. The respondent/defendant filed a written statement and contested the suit stating that they had not sold the suit property to the plaintiff. When that being so, the revision petitioner/plaintiff filed an application in I.A.No.612/2016 under Order 23 Rule 1 CPC stating that the principle was suffering from mental disorder from the year 2009 and so, he has not given correct particulars at the time of filing of the suit and hence, he seeks permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. Admittedly, the Trial Court without giving an opportunity to the defendant to file counter had dismissed the suit without granting permission to file a fresh suit.
4.The learned counsel for the petitioner relied upon the decision reported in 84 L.W. 450, Ranganathan v. Subramaniam and submitted that the Court shall not dismiss the suit as withdrawn without granting liberty to file a fresh suit on the same cause of action. Thus, the learned counsel for the petitioner for allowing the revision.
5.On the other hand, the learned counsel appearing for the respondent would submit that the respondent has not filed any counter in the application filed by the petitioner under Order 23 Rule 1 CPC and hence, he must be granted permission given a chance to putforth his case.
6.Considered the rival submissions made by both sides and perused the typed set of papers.
7.It is an admitted fact that the petitioner herein as plaintiff has filed the suit through his power agent, who is none other than his son in O.S.No.18/2008 for declaration of title and injunction in respect of 12 cents purchased under the sale deed dated 10.08.1965. It is pleaded that on partition between the principal and his brother, the property was allotted to the principal. While so, now the vendor's son and grandson attempted to interfere with the peaceful possession and enjoyment of the property and hence, the revision petitioner/plaintiff was constrained to file the suit for declaration of title and injunction. The respondent/defendant filed a written statement and contested the suit stating that they had not sold the suit property to the plaintiff. While so, during the pendency of the suit, the revision petitioner/plaintiff filed an application in I.A.No.612/2016 under Order 23 Rule 1 CPC praying to withdraw the suit with liberty to file a fresh suit on the same cause of action stating that the principle was suffering from mental disorder from the year 2009 and so, he has not given correct particulars at the time of filing of the suit. Admittedly, no counter affidavit has been filed in the said application. However, the Trial Court had passed the following order in O.S.No.18/2008:
1.that the suit be and the same is hereby dismissed as withdrawn without granting any permission to file a fresh suit.
2.that there no order as to costs. Admittedly, no separate order has been passed in the application in I.A.No.612/2016.
8.At this juncture, it would be appropriate to consider the decision relied on by the learned counsel for the petitioner reported in 84 L.W. 450, Ranganathan v. Subramaniam. The relevant portion of the said decision is usefully extracted hereunder:
Held, setting aside the order,, and remanding the case, when the petitioner seeks to withdraw the suit with liberty to file a fresh suit on the same cause of action, the lower court cannot direct the withdrawal of the suit without giving liberty to file a fresh suit on the same cause of action. If the court thought the petitioner is not entitled to the liberty sought for by him, it should have dismissed the application without dismissing the suit on the basis that it has been withdrawn.
....
As regards the second contention however I find that there is considerable force. When the petitioner seeks to withdraw the suit with liberty to file a fresh suit on the same cause of action, the lower court cannot direct the withdrawal of the suit without giving liberty to file a fresh suit on the same cause of action. If the court thought that the petitioner is not entitled to the liberty sought for by him, it should have dismissed the application without dismissing the suit on the basis that it has been withdrawn. As pointed out by Wanchoo C J. (as he then was) in Maru v. Mt.Najo (1) when an application for permission to withdraw a suit with permission to institute a fresh suit is made under sub-rule (2) of Order 23 CPC, it is not open to the court to treat it as if it is an application under sub-rule (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit and the prayer under sub-rule (2) must be treated as one whole and the court may either reject the entire prayer and allow the suit to proceed or allow the entire prayer, that is, permit the withdrawal of the suit with liberty to bring a fresh suit. The reason is obvious. If the court grants the petitioner the permission to withdraw, but refuses the permission to institute a fresh suit, the result would be that the plaintiff would be deprived of carrying on with the suit as best as he can and would also not be permitted to file a fresh suit on the same cause of action, and it was not the intention of the Legislature that the plaintiff should be put to this loss by breaking up the prayer for withdrawal with permission to file a fresh suit about the same subject-matter into two parts. This is also the view taken in Marudachala Nadar v. Chinnamuthu Nadar.
9.It would also be appropriate to incorporate Order 23 Rule 1 CPC.
1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(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.
(4) Where the plaintiff,
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.
10.Considering the facts of the present case in the light of the above decision and the relevant proviso, I am of the view that once the Trial Court declines to grant the liberty sought for by the plaintiff, the Court shall not dismiss the suit as withdrawn. In similar circumstances, this Court has remanded the matter to the Trial Court to decide the matter afresh. Further, the ratio decidendi laid down in the above citation will be squarely applicable to the facts of the present case.
11.Hence, the judgment and decree dated 06.04.2016 made in O.S.No.18/2008 on the file of the Subordinate Court at Nilgiris, Udhagamandalam is hereby set aside and the matter is remanded back to the Trial Court. The Trial Court is directed to decide the application in I.A.No.612/2016 afresh, on merits and in accordance with law, after giving an opportunity to the defendant to file counter in I.A.No.612/2016. The said exercise has to be carried out within a period of two months from the date of receipt of a copy of this order.
12.The Civil Revision Petition is disposed of with the above direction. Consequently, connected miscellaneous petition is closed. No costs.
02.01.2017 pgp Index:Yes/No R.MALA, J.
pgp C.R.P.(NPD).No.2509 of 2016 Dated : 02.01.2017