IMPORTANT POINT
The defect in the survey number of the suit property goes to the very core of the subject matter of the suit and constitutes “formal defect” in terms of Rule 1(3) (a), CPC.

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the impugned order dated 09.03.2015 passed by the High Court of Madras at Madurai Bench allowing C.R.P. NPD (MD) No. 248 of 2015, thereby declining the leave to the appellants to withdraw the suit.

3. Case of appellants-plaintiffs is that originally the suit property was the ancestral property of Annasamy Pandian, who is the father of the respondent-Karthyayani Natchiar herein and the patta for the entire suit property was issued in the name of Annasamy Pandian and his relatives (Pangaligal). The said Annasamy Pandian appointed one Thangaraj as his power agent to deal with his property by a registered Power of Attorney Deed dated 09.09.1999. Based upon the said Power of Attorney, the appellants purchased the said suit property from Thangaraj under four sale deeds i.e. 50 cents each. The appellants being husband and wife, fenced the suit property purchased by them and possessed and enjoyed the same as a single property. The Tahsildar of Kadaladi has passed an order dated 31.03.2003, confirming the appellants’ purchase and possession over the suit property. Further case of the appellants is that on the application of the respondent’s husband, the Sub-Collector, Paramakudi without conducting proper enquiry, cancelled the patta in the name of the appellants and transferred the patta in the name of the father of the respondent-Karthyayani Natchiar by order dated 06.08.2003. Alleging that the respondents are trying to interfere with the possession of the appellants of the suit property, the appellants have filed the suit as O.S. No.89 of 2004 for permanent injunction. In the said suit, the respondents filed written submission contending that the Power of Attorney was fraudulently obtained by said Thangaraj as he has no right to sell the suit property to the appellants.

4. According to the appellants, after the written statement was filed and during the trial, they learnt that the respondents while transferring the patta in respect of the suit property (Survey No.192/9), they have transferred it as Survey No.192/14, which the appellants were not aware of at the time of filing the suit. During the pendency of the suit, the respondent-Karthyayani Natchiar alongwith her husband-Velladurai is said to have clandestinely executed and registered an Inam Settlement Deed on 21.09.2012 in favour of their son Aranmanai Pandian, mentioning the Survey No.192/14; and they are also said to have handed over the possession of the suit property to him. Parties have also litigated before the Revenue Court regarding transfer of patta.

5. The trial in the suit commenced; witnesses were examined on both the sides. After the suit was posted for judgment, on application filed by the appellants for raising additional issues and for examining additional witnesses, the suit stood adjourned. At that stage, the appellants filed the application for withdrawal of the suit in terms of Order XXIII Rule 1 (3) CPC. The District Munsif allowed the application filed by the appellants seeking withdrawal of the suit with liberty to file a fresh suit and directed the appellants to pay cost of Rs.3,000/-to the respondents. Being aggrieved, the respondents filed revision before the High Court, which was allowed and order of the trial court was set aside. The High Court held that the appellants have failed to establish either “formal defects” or “sufficient grounds” for withdrawal of the suit. Being aggrieved, the appellants have preferred this appeal by way of special leave.

6. The learned counsel appearing for the appellants Mr. Nanda Kumar has submitted that the appellants filed the suit in O.S.No.89 of 2004 seeking relief of permanent injunction in respect of the suit property described as Survey No.192/9, but while transferring the patta, in favour of the respondents, it was transferred as Survey No.192/14, which the appellants were not aware of at the time of filing of the suit. The appellants have al