JUDGMENT :

D. BHARATHA CHAKRAVARTHY, J.

Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order and decree, dated 08.09.2016 made in I.A. No. 92 of 2015 in O.S. No. 212 of 2008, on the file of the District Munsif Court, Sholinghur, by allowing the present Civil Revision Petition.

1. This Civil Revision Petition is filed against an order dated 08.09.2016 passed in I.A. No. 92 of 2015 in O.S. No. 212 of 2008, on the file of the District Munsif, Sholinghur, whereby, the learned District Munsif had refused an application filed by the plaintiff under Order XXIII Rule 1, for withdrawing the suit with liberty to file fresh suit.

2. The plaintiff has filed the above suit for declaration of his right and title over the suit properties and for consequential permanent injunctions. The plaintiff-s case is that the suit properties were his ancestral properties and he had partitioned the properties with his brothers, originally by a koorchit, dated 25.08.1964, followed by a registered partition deed, dated 26.02.1974.

3. The case of the defendants is that the properties belonged to their paternal grand father P. Veerasami Reddi, and after his life time, his father namely Mr. P. Krishandoss Reddi, inherited the same and that the plaintiff has no right title or interest over the same.

4. The trial of the suit had commenced and the plaintiff side evidence was over and the defendants have also let in their evidence. It is at this stage the above application is filed by the plaintiff stating that only during the course of the trial, the plaintiff realized that the (i) defendant is right that the properties originally belonged to Mr. P. Veerasami Reddy, (ii) but however, the plaintiff’s predecessors in title were possessed of 8 different survey numbers of property, which are not the suit properties and that they had exchanged the same with the said Mr. P. Veerasami Reddy, in lieu of suit schedule properties and then even the exchanged properties are dealt with by the defendants-father Krishnadoss and his brother Seetharaman in the partition deed between them; (iii) as such, he cannot proceed with the present suit with this defective pleading and therefore prayed that he be permitted to withdraw the suit with liberty to file fresh suit.

5. The defendants resisted the application by filing their counter. Apart from denying that there was exchange of properties as alleged by the plaintiff, they have also detailed in paragraphs 6 to 8 as to how their predecessors in title got the said 8 items of properties by mentioning the title deeds including purchase from third parties. No reply whatsoever has been filed by the plaintiff to the said counter affidavit.

6. The Learned Trial Judge considering the fact that the application was filed at the fag end of the proceedings and following the dictum of this Court in Duraikannu and Others vs. Malayammal, 2003 SCC Online Mad. 593, held that the suit can be permitted to be withdrawn with liberty to file a fresh suit only for the reason if there is any formal defect or such other sufficient grounds, which are also formal in nature, thereby applying the principle of ejusdem generis to clause (b) of Order XXIII, Rule 3, dismissed the application by the Order impugned in the present Civil Revision Petition.

7. The Learned Counsel for the petitioner, Mr. A. Gouthaman, after taking this Court through the reasons, for which, the plaintiff filed the application, submitted that the case in Rajamanickam vs. P. Dhandapani and Others, 2013 (5) CTC 385 this Court has taken a contra view taken in Duraikannu vs. Malayammal and prayed that the Civil Revision Petition be allowed.

8. The Learned Counsel for the respondent, Mr. Prabhu, would take this Court through the order of the Learned Trial Judge and supported the Order.

9. As per Order XXIII Rule 3, it may be seen that the suit can be permitted to be withdrawn with liberty to file a fresh suit on the same cause of action for two reas