Appellate order for withdrawal of suit set aside in revision.

V. Balasubrahmanyan, J.

1. Krishnammal, the first respondent herein, was the owner of a house property bearing door No. 197 in Lala Chatram compound, North Masi Street, Madurai. Her next door neighbour was a Charitable institution by name Lala Chatram. In 1968 Krishnammal filed a suit against Lala Chatram claiming title to a vacant space of land, which, according to her, formed part of her property, house and ground, bearing Door No. 197. According to Krishnammal, her neighbour Lala Chatram was attempting to interfere with her possession of this portion of the vacant land. She, accordingly, filed a suit against Lala Chatram for declaration that the vacant space belonged to her and for an injunction restraining Lala Chatram from interfering with her rights. In the schedule attached to the plaint setting out a description of the suit vacant plot, Krishnammal gave the Survey Number of the plot as T.S. No. 620. Lala Chatram entered appearance and resisted the suit. Their case was that Krishnammal laid claim to title to the suit plot Which, in fact, was part of the Chatram's own land and was included in a different Survey Number, T.S. No. 629. On these pleadings parties went to trial. The learned District Munsif who tried the suit upheld the defence of Lala Chatram. He based his findings on the Commissioner's report and a plan attached thereto which clearly showed that Krishnammal was laying claim to the suit plot as falling within T.S. No. 620, which, actually, under the Commissioner's plan, was found to fall within the Chatram's land bearing T.S. No. 629. The learned District Munsif, accordingly dismissed Krishnammal's suit for declaration and consequential injunction. However, having regard to the situation of Krishnammal's property, with respect to the adjacent property of the Chatram, the learned District Munsif declared certain easement rights in favour of Krishnammal.

2. Against the dismissal of her suit for the reasons aforesaid, Krishnammal filed an appeal in the Sub-Court, Madurai. The principle ground in the Memorandum of appeal was that the learned District Munsif ought to have recorded a finding that the suit plot fell within T.S. No. 620. At the same time, however, Krishnammal filed an application for amendment of the plaint-schedule describing the suit plot as falling in both T.S. No. 620 and T.S. No. 629, varying the original description of the suit plot as falling in T.S. No. 620 alone. This application for amendment was opposed by Lala Chatram. The learned Subordinate Judge dismissed the application, after hearing the parties. Against that order, Krishnammal filed a revision in this Court. The revision too was dismissed, with the following observation:

The lower appellate Court rejected the application holding that it would change the subject-matter of the suit. In my opinion, the conclusion of the lower appellate Court was correct because it was the case of the respondent (Lala Chatram) that the property was situate exclusively in T.S. No. 629 and belonged to him and therefore the introduction of T.S. No. 629 in addition to T.S. No. 620 will certainly change the subject-matter of the suit itself. Hence the civil revision petition is dismissed.

3. Krishnammal's revision was disposed of by the Court in the manner aforesaid on 7th July, 1977. On 18th February, 1978, Krishnammal filed an application before the Sub-Court for an order granting her permission to withdraw the suit with liberty to constitute a fresh suit in respect of the subject-matter of the suit on the same cause of action. In that petition, the plea of Krishnammal was that the description of the suit plot in the plaint schedule as lying exclusively in T.S. No. 620 was a mistake. She said that it was purely on the mis-description of the suit plot that the learned District Munsif had dismissed her suit. It was, therefore, urged that what was an inadvertent mis-description must be permitted to be rectified by the Court by allowing her to withdraw the su