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High Court of Judicature at Madras
V. DHANAPALAN
A. Subramani & Another
Versus
Rathinammal & Others
C.R.P. (PD). No. 1680 of 2012 & M.P. No. 1 of 2012
Decided on : 30-07-2012
Withdrawal of Suit - Amendment of Pleadings - Order 23 Rule 1 CPC - [FACT OF THE CASE] The plaintiffs filed a suit for declaration of title to certain properties and for permanent injunction. Their application for amendment of pleadings was dismissed, and their subsequent application to withdraw the suit with liberty to file a fresh suit for the same cause of action was also dismissed. [FINDING OF THE COURT] The court held that the plaintiffs' attempt to withdraw the suit and initiate fresh proceedings to get rid of the claims in the amendment pleadings cannot be allowed, as it had already been rejected by the trial Court and confirmed by the High Court. [ISSUES] The main issue was whether the plaintiffs should be permitted to withdraw the suit with liberty to file a fresh suit for the same cause of action. [RATIO DECIDENDI] The court cited Order 23 Rule 1 of the Civil Procedure Code, which allows a plaintiff to abandon a suit or a part of the claim, but held that the plaintiffs' attempt to withdraw the suit after their application for amendment of pleadings was rejected cannot be allowed. The court also referred to previous decisions that emphasized the discretion of the court in granting permission to withdraw a suit with liberty to file a fresh one. [FINAL DECISION] The Civil Revision Petition was dismissed, but the order did not prevent the plaintiffs from contesting the suit by presenting evidence and raising contentions before the trial Court.
1. This Civil Revision Petition has been filed challenging the order dated 10.2.2012 in I.A.No.336 of 2011 in O.S.No.23 of 2010 on the file of the District Munsif and Judicial Magistrate, Pochampalli.
2. The revision petitioners are the plaintiffs in the suit O.S.No.23 of 2010 filed for declaration to declare title of the first plaintiff to the suit A schedule property and for permanent injunction against the defendants and also for declaring title of the second plaintiff to the suit B schedule property and for permanent injunction. The respondents/defendants filed written statement and contested the suit.
3. Earlier, the revision petitioners filed an application in I.A.No.419 of 2010 in the very same suit for amendment of pleadings. The said I.A. came to be dismissed by the trial Court, as against which, the petitioners have moved this Court in a Civil Revision Petition in C.R.P.(PD).No.3292 of 2011, which was dismissed by order dated 6.9.2011, confirming the order of the trial Court passed in the said I.A.No.419 of 2010. Thereafter, the petitioners have filed the present I.A. in I.A.No.336 of 2011 under Order 23 Rule 1 and Section 151 C.P.C. to permit the petitioners to withdraw the suit with liberty to file fresh suit for the same cause of action. The respondents have filed counter affidavit and the trial Court, on a consideration of the case, dismissed I.A.No.336 of 2011, as against which, the present C.R.P. is filed by the petitioners/plaintiffs.
4. Mr. C. Sanjai Baba, learned counsel representing Mr.V.Nicholas, learned counsel for the petitioners, consistently pleaded before this Court that the first petitioner purchased the properties from Dhanasekaran and sold one of the properties to the second petitioner and they wanted to amend the plaint and include the facts and hence, they earlier filed the petition for amendment in I.A.No.419 of 2010, which was dismissed, and on revision, the order of the trial Court was confirmed by this Court, and therefore, there is no other remedy for the petitioners but to withdraw the suit and to institute a fresh suit in respect of the suit properties by including the necessary parties stating all the correct facts, and therefore, the trial Court has not looked into the claim of the petitioners in proper perspective under Order 23 Rule 1 CPC in exercising inherent powers under Section 151 C.P.C.
5. Admittedly, the petitioners are the plaintiffs who filed the suit for declaration of title in respect of the suit A and B schedule properties and for permanent injunction. The suit has been contested by filing written statement and thereafter, the petitioners moved application for amendment of pleadings in I.A.No.419 of 2010, which was dismissed by the trial Court on 14.7.2011, against which, the petitioners have moved this Court in C.R.P.(PD).No.3292 of 2011, which was also dismissed on 6.9.2011, confirming the order of the trial Court in I.A.No.419 of 2010 and this Court held that the Court below dismissed the I.A. on the ground that the petitioners are introducing a new set of facts. That apart, it is also stated that though the petitioners have claimed that they have purchased the properties on 27.1.2010, the suit has been laid only later, i.e. on 22.2.2010. In such circumstances, the failure to state about the purchase made on 27.1.2010, which was within the knowledge of the petitioners, cannot be allowed. Taking such a view, the Court below dismissed the application preferred by the petitioners, and finding that there is no illegality or infirmity in the said order of the trial Court, this Court dismissed the C.R.P. confirming the order of the trial Court.
6. While that being the position, the petitioners have now filed the present I.A. in I.A.No.336 of 2011 praying to permit the petitioners to withdraw the suit with liberty to file fresh suit for the same cause of action. The trial Court, after taking note of the earlier dismissal of the C.R.P., which was dismissed holding
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