The petitioner is the plaintiff in O.S.No.4346 of 2006 on the file of XV Assistant Judge, City Civil Court, Chennai. While the matter was posted for arguments, he filed application in I.A.No.21967 of 2008 under Order 23 Rule 3(b) read with Section 151 C.P.C., seeking permission to withdraw the suit with liberty to raise all the contentions in the appropriate proceedings in the appropriate forum.
2. In the affidavit, the petitioner has stated that he filed the present suit for declaration, declaring the judgment and decree passed in O.S.No.7770 of 2000 is not binding on the plaintiff temple; that the main issue is, whether any temple is in existence or not. In fact, the defendant has categorically admitted in both the proceedings as well in the cross-examination that there is an "Amman Statue" inside the suit property and that the first defendant has already filed E.P.No.576 of 2004 on the file of the Xth Assistant Judge, City Civil Court, Madras and he is also taking steps to execute the same; that especially under Order 21 Rule 97 CPC., he is advised to state that he has to raise all the contentions before the Execution Court only and hence, he may be permitted to withdraw the suit with liberty to raise all the contentions raised in the present suit before the appropriate forum and that no prejudice will be caused to the other side in granting such prayer.
3. In the counter affidavit filed by the first respondent, it is stated that the allegations in the affidavit are not in conformity with the provisions under Order 23 Rule 1(3)(b) CPC; that the reasons adduced in the affidavit are not the sufficient grounds within the meaning of Order 23 Rule 1(3)(b) CPC; that, as on today, the petitioner is not an obstructor in E.P.No.576 of 2004; that anticipating any future happenings, he cannot file this application; that elaborate trial has to be conducted in the above suit and both oral and documentary evidence are available on record for the effective adjudication of the issues in the suit; that in order to avoid multiplicity of proceedings, the suit has got to be decided on merits, and that the petitioner/plaintiff has taken the precious time of the trial Court, appellate Court and also the High Court, Madras for various proceedings relating to the present suit and harassed this respondent to a maximum extent and hence, he cannot be permitted to withdraw the suit with liberty.
3(i). The Execution Court has passed an order, dated 14.09.2004, on merits in E.P.No.576 of 2004, directing delivery of possession. When the Court bailiff went to effect delivery, the second defendant in the suit has set up one S.Govindaraj to obstruct the execution, stating that he entered into an agreement with M.Munirathinam. This respondent filed E.A.No.4685 of 2005 for removal of obstruction and the obstructor has filed E.A.No.1647 of 2006. After recording evidence on both sides, the Execution Court allowed the application filed by this respondent and dismissed E.A.No.1647 of 2006. The obstructor, S.Govindaraj and the plaintiff are working for a common goal of delaying the execution proceedings. With the mala fide motive of delaying the proceedings, the petitioner filed the above E.A., and if the permission is granted to her, she will try to delay the execution proceedings in E.P.No.576 of 2004 for another 3 or 4 years. Hence, the petition has to be dismissed.
4. Learned trial Judge, after hearing both sides, dismissed the application, which is being challenged before this Court.
5. In order to get the relief under Order 23 Rule 1(3)(b) CPC., the plaintiff has to satisfy the Court that he has fulfilled the requirements contained in the said provision. For better understanding of the matter, the above provision is being extracted, which reads as follows:
"(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 thinkgs 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."
6. Learned counsel for the petitioner, Mr.C.Uma Shankar, would submit that the respondent would not be prejudiced by granting permission. Conversely, learned counsel for the respondent, Mr.T.R.Raja Raman, would submit that the petition has been filed at the later stage of the case, while it is nearing for arguments and there is no need to disturb the order passed by the Court below. He placed reliance upon the decision of the Supreme Court in K.S.Bhooopathy v. Kokila reported in 2000 (5) SCC 458, in which, Their Lordships have observed that the Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. It is also held that it is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants.
7. He also garnered support from another decision of the Apex Court in Rekha Mukherjee v. Ashis Kumar Das & Others reported in 2005 (3) LW 559, in which, the Supreme Court held that an order directing withdrawal of such a suit or abandonment of part of claim may be allowed only when the Court is satisfied that one or the other conditions specified in sub-rule (3) of Rule 1 are satisfied and that the Order 23 Rule 1(3) CPC confers the discretionary discretion on the Court.
8. In Siddagangappa v. Thimmanna reported in AIR 2003 Kar. 164, it is held that Courts are flooded with lakhs of cases and each takes considerable time to reach finality and that permission to withdraw suit at a final stage with a liberty to file a fresh suit on the same cause of action leads to multiplicity of proceedings. It is also held that Courts cannot afford to try multiple proceedings in respect of same cause of action unless special circumstances warrant, permission was therefore, rejected.
9. Adverting to the facts of this case, reasons assigned in the affidavit are that the petitioner has got very good case on merits in execution proceedings and he is advised that all the contentions raised in the suit can be raised before the Executing Court only and that he may be permitted to withdraw the suit.
10. The Court should find out whether Order 23 Rule 1(3)(b) CPC., would govern this reason. As observed by the Hon'ble Supreme Court, it is the matter of discretion of the Court. In view of the above, this Court finds that there are no sufficient grounds to allow the plaintiff to institute a fresh suit for the reasons that he has allowed the suit to be tried by recording the oral evidence at length involving spending of precious time of the Court and secondly, he is not so diligent on any earlier point of time and thirdly, if such prayer is granted, it would certainly lead to multiplicity of the proceedings.
11. In such view of this matter, this Court does not find any legal infirmity in the order impugned before this Court and the petitioner has to be non-suited for the relief prayed for. Order passed by the Court below deserves to be confirmed and accordingly, confirmed. The Civil Revision Petition is devoid of merits.
In fine, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
15.04.2009 Index: Yes Internet: Yes skm To The XV Assistant Judge, City Civil Court, Chennai.
S. PALANIVELU, J.
skm C.R.P.(PD)No.388 of 2009 15.04.2009