IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.09.2008 CORAM : THE HON’BLE MR. JUSTICE S.TAMILVANAN C.R.P.(PD) No.1681 of 2008 & M.P.No.1 of 2008 Perumal Pillai ..... Revision Petitioner/Plaintiff Vs. 1.Panduranga Gounder 2.Sankar 3.Mohandoss 4.Subramani 5.Anjalai 6.Mallika 7.Nala 8.Veralakshmi 9.Buvaneswari 10.Velankanni 11.Amutha 12.Mahalakshmi 13.Sarala 14.Sahila ... Respondents/Defendants Civil Revision petition filed against the order of the Principal District Munsif, Tindivanam dated 10.01.2008 made in I.A.No.1227 of 2005 in O.S.No.83 of 2004. For Petitioner : No Appearance For Respondent : Mr.T.Dhanasekaran for R1 to R4 ORDER No representation on behalf of the petitioner. Heard the learned counsel appearing for the respondents. 2. This Civil Revision Petition has been preferred against the order dated 10.01.2008 made in I.A.No.1227 of 2005 in O.S.No.83 of 2004 on the file of the learned Principal District Munsif, Tindivanam. https://hcservices.ecourts.gov.in/hcservices/ 3. The revision petitioner herein is the plaintiff before the trial Court, who filed the suit under Section 26 r/w under Order 7 Rule 1 C.P.C. seeking a decree of specific performance of contract. It is in part heard stage, the petitioner herein/plaintiff has filed an interlocutory application under Order 23 Rule 1(3) CPC to withdraw the suit with liberty to file a fresh suit on the same cause of action, which is negatived by the Court below, aggrieved by which, the revision petition has been preferred by the petitioner/plaintiff. 4. Mr.T.Dhanasekaran, learned counsel appearing for the respondents submitted that on 04.11.2003 the plaintiff examined himself as P.W.1 and after examination of P.W.1, one Natarajan was to be examined as P.W.2 for him proof affidavit was filed and for cross examination the suit was adjourn to 23.12.2003. However, the witness did not appear on 23.12.2003 for cross examination. Hence, the suit was adjourned to 06.01.2004 for defendant's side evidence. On 06.01.2004 the revision petitioner/plaintiff filed an application under Order 23 Rule 1(3) of CPC, which is not all maintainable. In the impugned order, the Court below has held that the petitioner herein had filed the suit for specific performance for an extent of 1.95 acres of land. But subsequently, the plaintiff submitted that on 15.07.1993, he obtained sale deed for 39 cents of land and that respondents 2 to 5 trespassed into the property and the suit property is under their possession and enjoyment and therefore he sought to file a fresh suit on the same cause of action. Even as per the averments of the plaintiff, the above said 39 cents of land was not the subject matter of the suit. Further, the revision petitioner already filed an application in I.A.No.671 of 2004 to amend the plaint which was dismissed on 05.01.2004. As found by the Court below, the petitioner/plaintiff has not specifically stated any acceptable reason for permitting him to withdraw the suit with liberty to file a fresh suit on the same cause of action. Admittedly, the plaintiff was examined as a witness, only after the cross examination of P.W.1, P.W.2 was to be examined in chief. As per Order 23 Rule 1(3) CPC, if the Court is satisfied that the suit must fail by reason of some formal defect or there are insufficient grounds for allowing the plaintiff to institute a fresh suit on the subject matter of the suit or for part of the claim. Then the Court can permit the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action. Here, in the instant case, the plaintiff has not specifically stated any formal defects so as to consider that the suit might be filed due to any formal defect. After examination https://hcservices.ecourts.gov.in/hcservices/ of witnesses, considering the evidence in the cross examination the plaintiff cannot be permitted to file a fresh suit subject to his convenience by changing the character of the suit merely by alleging the term on the same cause of action. The petitioner has also suppressed the material facts in the grounds and in the affidavit. 5. Therefore, I could find no error or infirmity in the impugned order passed by the Court below in dismissing the interlocutory application filed by the petitioner herein so as to warrant any interference by this Court, under Article 227 of the constitution of India. 6. In the result, the civil revision petition is dismissed. There will be no order as to costs. Consequently, connected miscellaneous petition is also closed. rrg Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1.The Principal District Munsif Court, Tindivanam. 1 cc to Mr.P.Srinivas, Advocate, SR51668 BVN (CO) dv/13.10. C.R.P.(PD) No.1681 of 2008 https://hcservices.ecourts.gov.in/hcservices/