The change in the nature and character of the suit property by the plaintiff was not a formal defect but a substantial change, and therefore did not satisfy the conditions for granting leave to withdraw the suit and file a fresh suit.

The revision petitioner herein is the plaintiff. In his suit O.S.No.70/2003 on the file of the District Munsif, Thirumangalam, the relief sought is declaration of title and consequential mandatory injunction regarding the suit schedule property and removal of superstructure put up in the suit property. After contesting the suit for 13 years, after examination of DW4 and when the trial is about to be completed, the plaintiff realised certain defect in his suit. Realising that if the defect is not cured, it will lead to dismissal of the suit has filed I.A.No.289/17 under Order 23 Rule 1(3) CPC to withdraw the suit with liberty to institute fresh suit.

2. The Trial Court considering the nature of the relief sought and the fresh facts put forth for seeking liberty to withdraw and institute fresh suit has held that the defect in the plaint is not a formal defect which could be cured by permitting to withdraw and file fresh suit. While in the plaint, the plaintiff has averred that he is the owner of the suit property upon which the defendants have encroached and put up construction illegally which warrants declaration of title and mandatory injunction to remove the superstructure, contrary to that plea, he now concedes his title over the property and averred that the suit property is public street. His earlier attempt to amend the plaint to that effect was dismissed. Suppressing the dismissal of his I.A.No.54/14 to amend the plaint, the present I.A.No.289/17 is filed to withdraw the plaint and file fresh suit.

3. Aggrieved by the dismissal of the interlocutory application, the present revision petition is filed by the plaintiff on the ground that the impugned order is contrary to the law and the dictum of the High Court. Liberty to file fresh suit withdrawing the present suit can be granted at any stage including the appellate stage if the present suit suffers from formal defect. In this case, the cause of action is same. Due to technical impediment, the plaintiff may loose his case. Hence, leave to withdraw and file fresh suit is just and necessary.

4. In support of his submission, the learned counsel for the revision petitioner relied upon the following judgments:-

(i) In V.Balan alias V.Balasubramanian vs. R.S.Rajan and A.D.Ramasamy, reported in 1991 (2) LW 193, the Madras High Court has held as under:-

''The relief prayed for by the petitioner in the suit is one of specific performance of an oral agreement for re-conveyance of the property entered into on 26.1.1978 and 1.4.1982. Admittedly, in the plaint, the petitioner did not aver his readiness and willingness to perform his part of the contract and under S. 16(c) of the Specific Relief Act, under those circumstances, specific performance of a contract cannot be enforced in favour of the petitioner. It is also not in dispute that the petitioner filed an application seeking an amendment of the plaint to include an averment relating to readiness and willingness; but that application was dismissed and this dismissal was affirmed by this Court as well as the Supreme Court. In other words, the attempt made by the petitioner to cure a formal defect had left the defect more formal than what it had been to begin with. In the absence, therefore, of an averment in the plaint about the willingness of the petitioner to perform the terms of the contract or even an averment to the effect that he has been ready and wiling to perform and terms of the contract, the suit has necessarily to fail owing to this defect, which as pointed out earlier, really had later become more formal than when the institution of the proceedings started. The court below has embarked upon a consideration of the later suit being out of time, if the present suit is permitted to be withdrawn on the ground of a formal defect. That, however, does not arise at this stage. When once the attempt of the petitioner who sought an amendment of the plaint had failed, in view of S. 16(c) of the Specific Relief Act, the suit has