IMPORTANT POINT
A plaintiff's right to withdraw a suit at the appellate stage is not absolute and must respect the rights acquired by the defendants under a decree.

ORDER :

THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

PRAYER:- Civil Revision Petition is filed under Article 227 of the Constitution of India against the Order and Decree, dated 02.11.2022, made in I.A.No.1 of 2021, in A.S.No.147 of 2018, on the file of the Principal Sub Court, Dindigul.

The Civil Revision Petition is directed against the order passed in I.A.No.1 of 2021 in A.S.No.147 of 2018, dated 02.11.2022, on the file of the Principal Sub Court, Dindigul, dismissing the petitioner filed under Order 23 Rule 1 C.P.C.

2. The revision petitioner as plaintiff has filed a suit in O.S.No. 1388 of 2004 to declare that the suit property is belonging to them and for permanent injunction restraining the second defendant from issuing any patta or from effecting any changes in the revenue records in favour of the first defendant and for permanent injunction restraining the defendants 1, 3 to 7 from interfering with the plaintiff's peaceful possession and enjoyment of the suit property.

3. Pending suit, the first defendant has been exonerated and subsequently, the defendants 4 to 8 were impleaded. After filing of the written statement, the trial Court has framed issues and proceeded with the trial and passed the judgment and decree dated 01.08.2018 dismissing the suit.

4. Aggrieved by the dismissal of the suit, the second plaintiff / revision petitioner herein preferred an appeal and the same is pending in A.S.No.147 of 2018, on the file of the Principal Subordinate Court, Dindigul. Pending appeal, the appellant/second plaintiff has filed an application under Order 23 Rule 1 C.P.C., seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action.

5. The respondents 1 and 2 – Government Authorities have remained exparte. The respondents 3 to 7 have filed their counter statement raising objections. The learned appellate Judge, after enquiry, has passed the impugned order dismissing the said petition. Challenging the dismissal, the present Civil Revision Petition came to be filed.

6. The learned Counsel for the revision petitioner would submit that since the suit was filed with formal defects, the same could be rectified by way of withdrawing the suit and filed a fresh suit and the same will not prejudice the respondents/defendants, that since the first defendant was wrongly impleaded, he was exonerated subsequently, that the petitioner's brother – first plaintiff had died during the pendency of the suit proceedings and he could not implead the legal heirs of the deceased plaintiff, as they were not willing to conduct the suit along with the petitioner and as such, the petitioner has to file the suit separately, that the defendants 3 to 7 have not claimed any right in the property belonging to the revision petitioner and as such they are not necessary parties and that therefore, he was constrained to file the above application seeking permission to withdraw the suit with liberty to file a fresh suit.

7. The respondents, in their counter statement, have raised serious objections that an elaborate trial was conducted, that the defendants have taken several admissions from the witnesses examined by the plaintiff's side, that the trial Court has given findings in favour of the defendants and against the plaintiff and that therefore, the appellant cannot be permitted to defeat the rights that were accrued to the defendants through the judgment and decree passed by the trial Court.

8. At the outset, it is pertinent to note that it is not the case of the revision petitioner/appellant that the suit was dismissed on the ground that there were formal defects and were fatal to the suit. No doubt, as rightly contended by the learned Counsel for the revision petitioner, the petition under Order 23 Rule 1 C.P.C., seeking permission to withdraw the suit with liberty file a fresh suit, can be filed even at the appellate stage and there is no legal bar or prohibition for invoking the said provision before the first appellate Cour