JUDGMENT :

R. THARANI, J.

Prayer: This Civil Revision Petition has been filed under Article 227 of Civil Procedure Code, to set aside the fair and decreetal order dated 25.01.2018 in I.A. No. 38 of 2017 in A.S. No. 14 of 2015 on the file of the learned Subordinate Judge, Kulithurai.

1. This petition has been filed to set aside the order in I.A. No. 38 of 2017 in A.S. No. 14 of 2015 dated 25.01.2018, on the file of the learned Subordinate Judge, Kulithurai.

2. The petitioner herein is the plaintiff and the respondent herein is the defendant in the suit. The revision petitioner herein has filed a suit in O.S. No. 155 of 2009 for permanent injunction. The suit was dismissed by the learned District Munsif, Kulithalai. Against the same, the petitioner herein has filed an appeal in A.S. No. 14 of 2015. Pending appeal, the petitioner herein has filed an application in I.A. No. 38 of 2017 before the learned Sub Judge, Kulithalai, to permit the petitioner herein to withdraw the suit and the appeal suit with liberty to file a fresh appeal suit on the same cause of action.

3. Brief substance of the petition in I.A. No. 38 of 2017 reads as follows:

The petitioner is the plaintiff and the suit was dismissed by the trial Court and the suit in O.S. No. 155 of 2009 was dismissed by the trial Court. Against the same, the petitioner preferred this appeal in A.S. No. 14 of 2015. The appeal is pending for enquiry. On 18.08.2017, one Subramani S/o Chinnaya Pillai died interstate leaving his wife Periyammal and her two daughters Siva Jothi, Selvarani and two sons Karnagiri and Chandirasekar. The children of Subramani were omitted to be impleaded as parties in the suit. The four children of Subramani are trying to prevent the plaintiff from enjoying the suit properties. Five years prior to the institution of the suit, the petitioner had registered a settlement deed dated 03.04.2009, with regard to fourth and fifth items of suit properties in favour of his two sons. Possession was delivered on the date of settlement deed. At the time of entrusting the brief to the previous counsel, a copy of the settlement deed was handed over but the previous counsel included all the suit properties comprised in Patta No. 475 in Mullipadi Village due to over sight. It is only due to inadvertence, this flaw has crept into the plaint.

In the written statement, the respondent denied the title of the plaintiff in the suit properties. These technical defects can be rectified only by way of amendment of the plaint by including a prayer for declaration. This formal defects cannot be rectified in the plaint and in the memorandum of appeal that too after the efflux of three years. The petitioner constrained to withdraw this suit and the appeal with liberty to present a fresh suit on the same cause of action.

4. Brief substance of the counter in I.A. No. 38 of 2017 reads as follows:

The contention of the petitioner are false. Only with an intention to harass the respondent, the petitioner has filed the suit and the appeal. The act of the petitioner is to shake the confidence, the people still have over the judiciary. On the date of plaint, the petitioner has not discussed the alleged settlement deed dated 03.04.2009, though the suit was filed only on 08.06.2009. The suppressions of material facts is fatal. In fact the petitioner is not having any right to execute the settlement deed in respect of suit properties. The alleged settlement deed is invalid and unenforceable. Only to drag on the case, the petitioner has filed this petition.

After the filing of the suit, the petitioner gave disturbance to the respondent and a criminal proceedings was also initiated. Though the petitioner claimed possession as on 08.06.2009, the personal affidavit reveals that he was not in possession of suit item 4 and 5 properties from 03.04.2009. Two sons of the petitioners have already filed a suit before the District Musnif, Kulithalai in O.S. No. 210 of 2017. The prayer in the suit is only for permanent