BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 07.03.2024 Pronounced on : 12.04.2024 CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR C.R.P.(MD)No.2391 of 2018 and C.M.P.(MD)No.10688 of 2018

1. M.Thangam

2. M.Palvel

3. M.Lakshmanan

4. G.Pappa

5. E.Ponnusamy

6. E.Chelladurai ... Petitioners/

Respondents/

Defendants Vs.

P.Subbammal ... Respondent/

Petitioner/

Plaintiff Prayer : This Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order passed in I.A.No.206 of 2017 in O.S.No.297 of 2013 dated 16.03.2018 on the file of the II Additional District Munsif Court, Tirunelveli, by allowing this Civil Revision Petition.

For Petitioners : Mr.H.Arumugam For Respondent : M/s.J.Roshini for Mr.D.Srinivasa Raghavan

ORDER

The Civil Revision Petition is directed against the order passed in I.A.No.206 of 2017 in O.S.No.297 of 2013 dated 16.03.2018 on the file of the 2^nd Additional District Munsif Court, Tirunelveli, allowing the application filed under Order 23 Rule 1(3) of the Code of Civil Procedure.

2. The revision petitioners are the defendants and the respondent is the plaintiff. For the sake of convenience and brevity, the parties herein will be referred to as per their status/ranking in the trial Court.

3. The plaintiff has filed the suit in O.S.No.297 of 2013 against the defendants before the District Munsif Court, Tirunelveli, claiming permanent injunction restraining the defendants and their men from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property. The defendants have filed their written statement and are contesting the suit. When the suit was in part-heard stage, the plaintiff has filed the above application in I.A.No.206 of 2017 under Order 23 Rule 1(3) C.P.C. seeking permission to withdraw the suit with liberty to file a fresh suit. The defendants have filed their counter statement raising serious objections. The learned District Munsif, after enquiry, has passed the impugned order dated 16.03.2018 allowing the application by imposing cost. Aggrieved by the impugned order, the defendants have preferred the present revision.

4. The case of the plaintiff, in the application filed under Order 23 Rule 1(3) C.P.C., is that the plaintiff has been suffering from diabetes and blood pressure, that she is aged about 64 years, that her son is working as auto driver in Chennai, that since she is an illiterate, while filing the suit, has given lesser measurements in the suit property, that she has also not claimed the relief of declaration, that there are some defects in the main plaint and some other reliefs ought to have been claimed, that the defendants sold more extent than that was owned by them and as such, she has to challenge those sales, that the above defects cannot be rectified by amendments and that therefore it has become just and necessary for her to withdraw the suit with liberty to file a fresh suit on the same cause of action or else, she will be put to irreparable loss and hardship.

5. The defence of the defendants is that the defendants have filed their written statement as earlier as on 11.12.2013, that they have already taken a stand that the respondent ought to have claimed the relief of declaration, that the description of the property given in the plaint are not correct, that an Advocate Commissioner was appointed at the instance of the defendants in I.A.No.1260 of 2013, that when the Advocate Commissioner visited the property along with Surveyor, the Surveyor informed that the property in dispute could not be measured, that the plaintiff, without taking any steps to amend the plaint, has examined herself as P.W.1 and subsequently, she was cross-examined, that the plaintiff has also examined another witness Chellammal as P.W.2 and was cross-examined and that the plaintiff, after taking so many adjournments for adducing further evidence, has come forward with the above application.

6. It is the further contention of the defendants