Sufficient grounds are wider than formal defects.

(Revision Petitions filed against the orders dated 17.12.2004 and 15.12.2004, passed in I.A.No.508/2004 in O.S.No.300/2000, on the file of the District Munsif-cum-Judicial Magistrate Court, Omalur.)

Common Order:

The 1st defendant in O.S.No.300/2000 is the revision petitioner herein.

2. O.S.No.300/2000 was filed by the plaintiff/1st respondent herein for partition and separate possession of 5/12th share in the suit schedule properties. The plaintiff filed I.A.No.508/2004 under Order 23 Rule 1 of the Code of Civil Procedure praying for an order for permission to withdraw the present suit with a liberty to file a fresh suit on the same cause of action. By order dated 15.12.2004 the trial court allowed I.A.No.508/2004 on payment of cost of Rs.1,000/- to be paid on or before 17.12.2004 to the defendants. As the cost was refused by the defendants, the same was deposited in the court and recording the same, the I.A. was allowed by the trial court on 17.12.2004. Challenging the orders dated 15.12.2004 and 17.12.2004 the above Civil Revision Petitions have been filed by the 1st defendant in the suit alone.

3. Heard the learned counsel for the revision petitioner and also the learned counsel for the respondents. I have also gone through the documents and the judgments referred to by them in support of their submissions.

4. Learned counsel for the revision petitioner submitted that the trial court ought to have considered the fact that already another Application was filed by the plaintiff in I.A.No.285/2004 praying to amend the plaint and the same is pending. In such circumstances orders should have been passed in the amendment Application and if that had been done, there would have been no occasion for the trial court to pass any order in I.A.No.508/2004.

5. Learned counsel further represented that two conditions must be satisfied before granting permission to withdraw a suit with liberty to institute a fresh suit, namely, (1) there must be a formal defect in the suit resulting in failure of the suit itself and (2) there must be sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit. As both the ingredients are absent in the present case, according to the learned counsel for the revision petitioner, the trial court ought not to have permitted the plaintiff to withdraw O.S.No.300/2000 and to file a fresh suit on the same cause of action. She relied on the judgments reported in A.I.R. 1940 Bombay 121 (Ramrao v. Babu Appanna) and A.I.R. 1953 Bhopal 32 (Gorelal and others vs. Nandlal).

6. Per contra, learned counsel for the respondents submitted that the earlier I.A.No.285/2004 was filed for amending the plaint on the ground that the suit schedule properties were not valued properly and proper value of the suit could be given in the place of the value wrongly mentioned in the plaint. If such proper value replaced the wrong value, then the court could lose its pecuniary jurisdiction and the plaint was to be returned for presenting the same in the District Court, Salem. She further added that even if I.A.No.285/2004 was allowed and amendment was carried out, the same had to be returned to be presented before the District Court, Salem and taking into consideration the formalities and complications involved, another I.A. was filed in I.A.No.508/2004 to withdraw the present suit with liberty to file a fresh suit on the same cause of action. Learned counsel further submitted that the trial court considered the matter in the proper perspective and permitted withdrawal of the suit with payment of cost to the defendants which order need not be interfered with by this court under Article 227 of the Constitution of India.

7. I have given my due consideration to the rival contentions of the learned counsel on either side.

8. Under Order 23 Rule 1, the plaintiff may at any time after the institution of the suit against all or any of the defendants abandon the suit or part of the claim. Under Orde