Advocates:
['M/S C PRABAKARAN', '', 'M SIVAKUMAR', 'R SADER', '', 'S/O ABDUL RAHIMAN', 'R ABDUL RAHIMAN', 'S/O DASTAGIR SAHIB', 'R RAJIYA', 'W/O ABDUL RAHIMAN', 'R MAAJAN', 'W/O ALLIGAN LATE', 'R AKBAR BASHA', 'S/O HOZUR SAHIB', 'R BASHA', 'R BABU', 'R SHIEK KHADER', 'S/O DASTAGIR SAHIB BISMILLA']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 19.12.2016

Coram:

THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA

C.R.P.(PD).396 of 2014

and

M.P.No.1 of 2014

Shanbi ... Petitioner/Plantiff

vs.

Alligan(died)

1.Sader

2.Abdul Rahiman

3.Rajiya

4.Maajan

5.Akbar Basha

6.Basha

7.Babu

8.Shiek Khader .. Respondents/Defandants

Petition filed under Section 227 of the Constitution of

India against the fair and decreetal order dated 18.11.2013,

made in I.A.No.914 of 2013 in O.S.No.327 of 2008, on the file of

the District Munsif Court at Krishnagiri.

For Petitioner : Mr.C.Prabakaran

For Respondents : No appearance

ORDER

This civil revision petition is filed by the

plaintiff in the suit, which is for declaration of title and for

consequential injunction.

2. It is stated that during the pendency of the suit,

when the case was posted for cross-examination of the plaintiff,

she had come to know that there were wrong averments in the

plaint, including the name of her husband and she accepted the

same due to inadvertence. Therefore, I.A.No.914 of 2013 was

filed under Order 23 Rule 1 of C.P.C., seeking permission to

withdraw the suit with liberty to file a fresh suit on the same

cause of action. The said application was dismissed by the

learned trial Judge and this revision is filed against the said

order.

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3. The learned counsel for the petitioner contended that

inadvertently, in the plaint, an averment to the effect that the

suit property is a self-acquired property of the plaintiff has

been made, whereas, it was inherited by her, by way of

succession through her husband. On that ground, the learned

counsel argued that the defect is only a formal one and to

rectify the same, the plaintiff may be allowed to withdraw the

suit and file a fresh suit on the same cause of action.

4. The trial Court has dismissed the application on the

ground that even the fundamental facts are wrongly stated in the

plaint. Though the defects may be due to wrong drafting by the

counsel, however, the same cannot be allowed considering them to

be a formal defect. If it is a mistake crept in due to

inadvertence, the plaintiff could have adopted any other method

to rectify the same, in the manner known to law. But withdrawal

of the suit with liberty to file a fresh suit on the same cause

of action is impermissible, when it is not a formal defect. I

could see no infirmity or illegality in the order passed by the

trial Court, warranting interference by this Court. Hence the

civil revision petition is dismissed. No costs. Connected

miscellaneous petition is dismissed.

s/d-

Assistant Registrar(CS VII)

/true copy/

Sub-Assistant Registrar

Msk

To

The First Additional District Munsif, Erode.

+1 CC to Mr. C. Prabakaran, Advocate vise SR 74208

C.R.P.No.396 of 2014

GJ

sp/19/1

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