1. Challenge to grant of leave to withdraw suit and file fresh suit on same cause of action under Order XXIII Rule 1 CPC. (Para 1 )
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2025 Supreme(Online)(Mad) 79722
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mr.Justice P.B. BALAJI
SABAREESAN – Appellant
Versus
PERIYASAMY PADAIYATCHI – Respondent
CRP.No.984 of 2023 & CMP.No.7270 of 2023
Advocates:
For the Appellants/Petitioners: R. Rajarajan
For the Respondents: B. Eswaran for M/s. Swaraj Associates
For the Appellants/Petitioners: R. Rajarajan
For the Respondents: B. Eswaran for M/s. Swaraj Associates
Leave to withdraw a suit with liberty to file a fresh suit under Order XXIII Rule 1 CPC requires a formal defect or sufficient grounds; mere absence of prejudice or plaintiff's wish for a different relief is insufficient.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXIII Rule 1(3) - Constitution of India - Article 227 - Withdrawal of suit with liberty to file fresh suit - Requirement of formal defect or sufficient grounds - Discretion must be exercised with caution - Mere absence of prejudice to defendant not sufficient.
(B) Order XXIII Rule 1(3) - Interpretation of 'sufficient grounds' - Plaintiff's claim of improper legal advice and need for additional relief not amounting to sufficient grounds - Where plaintiff has pleaded oral partition, cannot seek to withdraw to include partition relief as that would prejudice defendant's accrued rights.
Facts of the case:
The plaintiff in a suit for declaration sought to withdraw the suit with liberty to file a fresh suit for partition, claiming that he was not properly advised and mere declaratory relief was inadequate. The trial court allowed the application, stating that trial had not commenced and no prejudice would be caused to the defendant. The defendant challenged the order by civil revision petition.
Findings of Court:
The High Court found that no formal defect was pointed out. The plaintiff's reason of insufficient relief did not constitute 'sufficient grounds' under Order XXIII Rule 1(3)(b). The plaintiff had specifically pleaded an oral partition in the plaint and could not now seek a partition suit by withdrawing the declaratory suit. The trial court failed to record satisfaction as mandated by the provision and erroneously relied on absence of prejudice. Relied on K.S.Bhoopathy v. Kokila and Regina v. Ruby.
Issues: Whether the trial court was correct in granting leave to withdraw the suit with liberty to file a fresh suit in the absence of a formal defect or sufficient grounds.
Ratio Decidendi: The power under Order XXIII Rule 1(3) to grant leave to file a fresh suit on the same cause of action is discretionary but must be exercised with circumspection. The court must be satisfied that the suit would fail by reason of a formal defect or that there are other sufficient grounds. The term 'sufficient grounds' does not include a mere change of legal strategy or belated realization of inadequate relief, especially when it contradicts the plaintiff's own pleadings. The trial court's reasoning that no prejudice would be caused is not enough; it must record its satisfaction on the existence of statutory grounds.
Result: Civil Revision Petition allowed; order dated 08.11.2022 set aside; no order as to costs.
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2. Petitioner argued no formal defect for withdrawal; respondent argued insufficient advice and need for partition relief. (Para 3 , 4 , 5 )
3. What constitutes a 'formal defect' under Order XXIII Rule 1 CPC?
A formal defect is a defect of form prescribed by rules of procedure, such as improper valuation, misjoinder, or failure to disclose cause of action. (Para 12 , 15 )
4. What are 'sufficient grounds' for granting leave under Order XXIII Rule 1(3)(b) CPC?
Sufficient grounds require the court's satisfaction that proper reasons exist; plaintiff's claim of improper advice and need for partition is insufficient if inconsistent with pleaded facts. (Para 11 , 14 , 16 , 17 , 18 )
5. Is it sufficient for the trial court to grant leave merely on the ground of no prejudice to the defendant?
No, the court must record satisfaction that proper grounds exist; mere statement of no prejudice does not comply with statutory mandate. (Para 14 , 17 )
ORDER
The defendant in O.S.No.87 of 2010 on the file of the Additional District Munsif Court, Perambalur, challenges the liberty granted by the Trial Court to the plaintiff to file a separate suit on the same cause of action, invoking Order XXIII Rule 1 of CPC.
2.I have heard Mr.R.Rajaraman, learned counsel for the petitioner and Mr.B.Eswaran, learned counsel for M/s.Swaraj Associate, for the respondent.
3.The learned counsel for the revision petitioner would firstly contend that the plaintiff, without even pointing out any formal defect in the plaint, had sought for liberty to file a fresh suit on the same cause of action, invoking Order XXIII Rule 1 of CPC. In this regard, he would take me through the plaint averments in the present suit and also the reasons assigned by the respondent/plaintiff for withdrawing the suit, with liberty to file a fresh suit on the same cause of action. He would further state that when the plaintiff has admitted that there was a partition already in paragraph No.5 of the plaint, there was no requirement for seeking the relief of partition, that too, by withdrawing the suit for declaration and filing a fresh suit on the same cause of action.
4.The learned counsel for the revision petitioner would also attack the findings of the Trial Court, granting liberty as sought for, as being misconceived, erroneous and contrary to the settled legal position. He would also rely on the decision of the Hon'ble Supreme Court in K.S.Bhoopathy and others Vs. Kokila and others , reported in (2000) 5 SCC 458 and also the decision of this Court in Regina Vs. Ruby @ Rubavathy and another , in CRP(PD)(MD)No.2088 of 2023 dated 06.03.2024. He would therefore pray for the revision being allowed.
5.Per contra, the learned counsel for the respondent would state that the plaintiff was not advised properly in seeking appropriate relief and only on coming to know that the relief that has been sought for by the plaintiff would not actually give him any effective remedy, the present application has been taken out. He would also take me through the averments in the plaint and the necessity for framing the suit properly and effectively, in order to ultimately render justice to the plaintiff. It is also the contention of the learned counsel for the respondent that pursuant to the order granting leave under Order XXIII Rule 1 of CPC, the respondent has also filed a fresh suit which is pending in O.S.No.78 of 2023 before the Additional District Munsif Court, Perambalur, and the revision petitioner has also been served with summons in the said suit. He would therefore contend that no interference is warranted with the well considered order of the Trial Court, granting leave. He would also place reliance on the decision of the this Court in M.Sai and another Vs. Shree Dharmaraja Kovil Trust , Rep. by its Trustees Ekambara Chettiyar and others, reported in 2018 3 L.W 156, in support of his contentions.
6.I have carefully considered the submissions advanced by the learned counsel on either side. I have gone through the records, including the order passed by the Trial Court, granting leave to the respondent to institute a fresh suit, on the same cause of action on which the present suit has been filed.
7.Originally, an extent of 2 acres and 99 cents was purchased under a registered sale deed by the respondent/plaintiff along with his sister, one Pachaiyammal. Though there was no formal partition deed, it appears even from the reading of the plaint that the parties had, for the sake of convenience, divided the properties and the eastern side was being cultivated by the sister of the plaintiff and the western side portion was being cultivated by the respondent/plaintiff. There was a well which was in common enjoyment situate in between both the properties. It is the contention of the plaintiff that a new well was also dug and the plaintiff has contributed Rs.17,000/- for the same and electricity service connection was also obtained in the name o
