IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.08.2011 CORAM THE HON'BLE MR.JUSTICE S.RAJESWARAN Civil Revision Petition No.2165 of 2008 and M.P.No.1 of 2008 Family Manager Dr.N.Gunaselan ... Petitioner/Defendant Vs. 1.N.Santha 2.Thenayal ... Respondents/Plaintiffs Prayer: This petition has been filed under Article 227 of the Constitution of India aganist the fair and final order passed by the Principal Sub Court, Gobichettipalayam dated 23.04.2008 made in I.A.No.68/2008 in O.S.No.74 of 2004. For petitioner : Mr.S.V.Jayaraman Senior Counsel for Mr.M.Duraisamy For respondents : Mrs.Hema Sampath Senior Counsel for Mr.I.C.Vasudevan * * * * * ORDER This Civil Revision Petition has been filed against the order dated 23.04.2008 made in I.A.No. 68 of 2008 in O.S.No. 74 of 2004 on the file of the Principal Sub Court, Gobichettipalayam. 2. This Civil Revision Petition has been filed by the defendant in O.S.No.74 of 2004. 3. O.S.No.74 of 2004 has been filed by the respondents/plaintiffs before the Subordinate Court, Gopichettipalayam, for partition and separate possession and for injunction. 4. The case of the plaintiffs in the said suit was that, the suit properties are the ancestral properties which fell to the share https://hcservices.ecourts.gov.in/hcservices/ of their late father M.C.Narayanaswamy under a Registered Family Partition Deed dated 27.01.1963. The suit properties were not partitioned during the life time of their father and during his life time he had executed an unregistered will on 02.10.2001, bequeathing the entire properties to the respondents/plaintiffs and therefore, the respondents/plaintiffs are entitled to ½ share of the suit properties and the defendants and his heirs are entitled to the other ½ share. The defendant filed a written statement and the suit is being contested. While so, pending suit, the plaintiffs filed I.A.No.361 of 2007 to amend the plaint claiming 7/12th share in the suit properties on the basis of the rights under the Hindu Succession (Amendment) Act 39 of 2005. The said application was resisted by the petitioner/the defendant in the suit by filing a counter. The trial court by order dated 07.12.2007, dismissed the application. No revision was filed against the said order and the same became final. Thereafter, the suit was taken up for final hearing. At that time, the plaintiffs filed I.A.No.68 of 2008 to withdraw the suit with a liberty to file a fresh suit for the same cause of action in the light of the Hindu Succession (Amendment) Act, 2005. This application was resisted by the petitioner herein/the defendant in the suit by filing a counter. The trial court allowed the application by order dated 24.03.2008. Aggrieved over the same, the above revision has been filed by the defendant. 5. I have heard the learned senior counsel, Mr.S.V.Jayaraman appearing for the petitioner and the learned senior counsel, Mrs.Hema Sampath appearing for the respondents/plaintiffs. I have also gone through the documents available on record. 6. The learned senior counsel appearing for the petitioner would contend that having suffered an order of dismissal in the application filed by the plaintiff to amend the plaint, as per the provisions of the Hindu Succession (Amendment) Act 39 of 2005 and having allowed the same to become final, filing an application again to withdraw the suit and to file a fresh suit for the same cause of action ought not to have been allowed by the trial court. According to the learned senior counsel, the plaintiffs are estopped from claiming any larger relief even if it is available by way of a fresh suit. He further submits that the Amended Act 39 of 2005 will not apply to the case of the plaintiff, as it is not retrospective in operation. Admittedly, the father of the plaintiffs died on 14.10.2001 and the amended Act came into force only in the year 2005. On the death of Mr.Narayanaswamy/the father of the plaintiffs, there was a divastation in the coparcenary and the Hindu Succession Act therefore has no application at all. Therefore, according to the learned senior counsel for the petitioner, the application ought not to have been allowed by the trial court and the order has caused enormous prejudice to the defendant. Hence, it requires interference by this Court. In support of his submissions, the learned senior counsel https://hcservices.ecourts.gov.in/hcservices/ relied on the following judgments: 1.1971 (2) MLJ 126 (T.N.Ranganathan vs. T.K.Subramaniam) 2.1984 (1) MLJ 28 (Lala Chatram, rep. By hereditary and Manging Trustee, R.Ramanatha Misra, Advocate, having its office at Yanaikkal, Madurai vs. Krishnammal and others) 3.1998 (3) CTC 571 (R.Asokan vs. P.Muthusamy and 3 others) 4.1999 (2) CTC 593 (R.Rathinavel Chettiar and another vs. V.Sivaraman and others) 5.1996 (2) CTC 127 (R.Thyagarajan vs. Meenakhi Ammal) 6.1996 (2) SCC 167 (Bakhtawar Singha nd another vs. Sada kaur and another) 7.AIR 1971 MYSORE 334 (V.Narayanappa vs. Narayanappa and another) 8.2003 (3) MLJ 551 (Duraikannu and others vs. Malayammal) 9.2000 (3) CTC 558 (K.S.Boopathy and others vs. Kokila and others) 10.2006 (4) MLJ 919 (Murugesan vs. Alamelu Ammal and others) 11.2006 (8) SCC 581 (Sheela Devi and others vs. Lal Chand and another) 12.2007 (2) TNT 193 (Jayalakshmi and another vs. Govindammall and others) 13.2008 (1) MLJ 560 (Angammal and another vs. C.Sellamuthu and another) 7. Per contra, the learned senior counsel, Mrs.Hema Sampath appearing for the respondents/plaintiffs while supporting the order passed by the trial court in allowing the application, would refer to the following judgments. 1.1999 (3) LW 227 (SC) (The Executive Offier, Ardhanareeswarar Temple vs. R.Sathyamoorthy and others) 2.99 LW 458 (SC) (M/s.Konkan Trading Company vs. Suresh Govind Kamat Tarkar and others) 3. 1991 (3) SCC 647 (S.Sai Reddy vs. S.Narayana Reddy and others) 8. I have considered the rival submissions carefully with regard to the facts and citations. 9. Admittedly, the case of the plaintiffs in O.S.No.74 of 2004 is that their father executed an unregistered Will on 02.10.2001 bequeathing the entire suit property to them. Therefore, they prayed for a decree of partition of the suit properties into two equal shares and allotting one such share to the plaintiffs with separate possession. The Will was seriously questioned by the defendant https://hcservices.ecourts.gov.in/hcservices/ stating the Will dated 02.10.2001 is a rank forgery. While so, in October 2007, the plaintiffs filed I.A.No.361 of 2007 to amend the plaint as per the details given in the petition. In the details given in the petition, it was stated that as per Hindu Succession Amendment Act, 2005, the first plaintiff is entitled to a share equal to that of his brother/the defendant. Therefore, both the plaintiffs are entitled to a total of 7/12 share in the suit property. It is evident from the I.A.No.361 of 2007 that plaintiffs wanted to take advantage of the Hindu Succession Amendment Act, 2005, eventhough the case pleaded in the plaint is that, an unregistered Will was executed by the father of the first plaintiff on 02.10.2001 bequeathing the entire suit property to the plaintiffs. 10. The reason given by them for seeking amendment in I.A.No.361 of 2007 is that if they are unable to prove the will, then they would be entitled to the 7/12th share in the suit property as per the Hindu Succession Amendment Act, 2005. The trial court by the order dated 07.12.2007 dismissed the application and admittedly it was not challenged in the manner known to law and the said order has reached its finality. After dismissal of I.A.No.361 of 2007 on 07.12.2007, the plaintiffs on 06.02.2008 filed I.A.No.68 of 2008 under Order 23 Rule 1(3) CPC to withdraw the suit with a liberty to file a fresh suit on the very same cause of action by incorporating appropriate relief in the light of the provisions of the Hindu Succession Amendment Act, 2005. The trial court, on 23.04.2008, in I.A.No.68 of 2008 allowed the application and aggrieved by the same, the above revision petition has been filed. 11. From the admitted facts narrated by me as above, it is very clear that I.A.No.68 of 2008 was filed by the plaintiffs after their application filed in I.A.No.361 of 2007 was dismissed by the trial court. This fact itself is sufficient to reject the I.A.No.68 of 2008, but, the trial court without considering the facts in the proper perspective and without looking into the provisions of Order 23 Rule 1(3) of CPC, allowed the application and it is a fit case for this Court to interfere with under Article 227 of the Constitution of India. 12. Order 23 Rule 1 CPC is extracted below for better appreciation of its provisions: 1. Withdrawal of suit or abandonment of part of claim (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor https://hcservices.ecourts.gov.in/hcservices/ any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub- rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.] 13. From the above, it is very clear that the Court can give liberty to institute a fresh suit when: 1.the suit must fail by reason of some formal defects; and 2.there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit clam or part of the claim. 14. Therefore, when an application is filed under Order 23 Rule 1(3) CPC, the court has to find out whether any one of the two reasons spelt out under Order 23 Rule 1(3) CPC are present and only when anyone of these two reasons get attracted, liberty can be given for withdrawing the suit and to file a fresh suit. https://hcservices.ecourts.gov.in/hcservices/ 15. In the present case, the reasons given by the plaintiffs for seeking the relief under Order 23 Rule 1(3) CPC is that the application filed by them in I.A.No.361 of 2007 was dismissed on 21.12.2007 on technical grounds. If the matter was taken up to the High Court by way of a revision, it may consume a lot of time and incur heavy expenditure. Therefore, they were advised to withdraw the present suit with the liberty to file a comprehensive fresh suit in the light of the provisions of the Amendment Act, 2005. These reasons given by the plaintiffs for filing an application under Order 23 Rule 1(3) CPC are hardly sufficient and unacceptable as by this they only wanted to get away from the orders suffered by them in I.A.No.361 of 2007 on 07.12.2007. In other words, the plaintiffs wanted to maintain a clean slate by rubbing out the adverse orders suffered by them earlier. 16. Now, let me consider the decisions submitted by the learned senior counsel appearing on either side. 17. In AIR 1971 MYSORE 334 (cited supra(), it was held as follows: "7. It is clear from the material on record in this case that the plaintiff tried to have the matter of adoption brought before court by means of an application for amendment. That application was rejected and this court declined to interfere with that order as the same could be challenged by the plaintiff in an appeal under Section 105 C: P. C., if the plaintiff failed in the suit and filed an appeal before the appellate court. When the plaintiff's attempt to have the amendment of the plaint failed the present application is filed stating that there is a formal defect. The defect stated in the present case should not come into any of the categories of 'formal defect' stated in AIR 1940 Bom 121 (FB). I am of the view that the court below had no jurisdiction in these circumstances to grant permission or liberty to withdraw the suit with permission to file a fresh suit. The only reason stated by the learned Munsiff is that the plaintiff having failed in his amendment application is denied an opportunity to prove the matter and hence there is a formal defect. This view taken by the learned Munsiff as to what 'formal defect' is, in my opinion, plainly erroneous. Having regard to the principle stated earlier, this is a case in which the attempt to introduce a new matter at a late stage having failed, the plaintiff wants to take advantage of having a fresh trial by having the other matters which were rejected being brought into the new https://hcservices.ecourts.gov.in/hcservices/ suit. That is not the object for which the provision is made under Order 23, Rule 1 C. P. C., I am therefore, of the opinion that the court below has exercised the jurisdiction not vested in it by allowing the plaintiff to withdraw the suit with liberty to file a fresh suit That order has to be set aside." 18. In the above case also, the application was filed by the plaintiff for amendment of the plaint. That was rejected by the trial court and the same was also confirmed by the High Court. Thereafter, an application was filed under Order 23 Rule 1 CPC, seeking liberty to withdraw the suit and the same was allowed by the trial court. When the correctness of the order was questioned, the High Court held in the above terms and this judgment is definitely supporting the case of the petitioner herein. 19. In 2003 (3) MLJ 551 (cited supra), this Court held as under: "4. This revision lies in a narrow campus. The petitioners have filed the application under Order 23 Rule 1 (3) CPC seeking permission of the Court to withdraw the suit and to file a fresh suit for the very same cause of action. Order 23 Rule 1 (3) CPC runs as follows:- 1. Withdrawal of suit or abandonment of part of claim: (3) Where the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. 5. Under Clause (b) of Order 23 Rule 1 (3), suit can be withdrawn with a liberty to sue afresh on sufficient grounds. The expression "sufficient grounds" must be read 'ejusdem generis' with clause (a) and a ground to be sufficient ground must be similar or alike to the cause mentioned in Order 23 Rule 1 (3) (a). 7. The granting of the permission to withdraw with liberty to bring a fresh suit removes the bar of resjudicata which would otherwise apply, if a fresh suit on the same cause of action is brought. Clause (3) contemplates the circumstance in which the permission could be granted by the Court on its https://hcservices.ecourts.gov.in/hcservices/ satisfaction namely (i) a suit must fail by reason of formal defect and (ii) there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. 8. Formal defect means a defect of form, which is prescribed by Rules or Procedure. A defect which goes to the root of the plaintiff's claim is not a formal defect. The formal defect may be omission to obtain permission of Court to file the suit, misjoinder of parties or cause of action, failure to disclose cause of action for the plaint, erroneous valuation of the subject matter of the suit and institution of a suit in a Court which has no jurisdiction to entertain it. 9. The other sufficient ground is that the defect must not be due to plaintiff's own fault, hence the expression 'other sufficient ground' should be construed 'ejusdem generis' with formal defect. The failure of the plaintiff to prove his own case is no ground for allowing him to withdraw his suit with liberty of suing again for the same subject matter. 10. The object of the Rule is not to enable a plaintiff, after he failed to conduct his suit with proper care and diligence and after his witnesses failed to support his case, to obtain an opportunity of commencing the trial afresh in order to avoid the result of his previous bad conduct of the case so as to prejudice the opposite party. 11. The sufficient grounds are like the evidence being not available for no fault of the plaintiff, the suit being pre-matured and the cause of action accruing pending the suit, the plaintiff has failed to put in evidence an important document and where the plaintiff had been mislead by the absence of a specific denial by the defendant. 12. After satisfaction, the Court may grant permission. The matter of granting permission under this Rule is within the discretion of the Court. The Court, when granting permission under this Rule must give its reason for granting such permission, although in the case of refusal there is no such obligation." 20. In the above decision, this Court held that the matter of granting permission under Order 23 Rule 1 CPC is within the jurisdiction of the Court and when granting permission the Court must given reasons, although in the case of refusal there is no such obligation. 21. If the reason given by the trial court for granting permission is looked into, I hardly find any reasons, much less any https://hcservices.ecourts.gov.in/hcservices/ acceptable reasons. The order is cryptic and is without analysing the facts and without containing reasons for granting permission. 22. In 1996 (2) CTC 127 (cited supra), this Court observed as follows: "4. In such a situation, as rightly pointed out by the learned Counsel for the petitioner, there is no case at all for invoking Order 23, Rule 1(3) of the Code of Civil Procedure. The said rule says: "Where the Court is satisfied:- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit... with liberty to institute a fresh suit in respect of the subject matter of a such suit." It is clear to me that there is no formal defect involved at all in the present case. If really the plaintiff wanted to further amend the plaint, even after the abovesaid I.A. No. 16657 of 1990 he could have filed immediately after I.A. No. 16657 of 1990 was filed necessary application for amending the plaint without doing so, only in 1995, the present I.A. is filed. Order 23, Rule 1 (3) of the Code cannot be invoked unless the suit must fail by reason of some formal defect. No doubt, in clause (b) of the said Rule 3, it is mentioned that even for sufficient grounds similar relief could be granted. But even then the term "sufficient grounds" have been interpreted to mean grounds skin to the earlier mentioned ground of formal defect. At any rate, the claim made in the I.A. cannot at all be a sufficient ground for invoking Order 23, Rule 1 (3) of the Code. The plaintiff could have very well filed an I.A. seeking amendment of the plaint. Without filing an application for amendment of the plaint, (if really any new amendment is necessary) he cannot in the above circumstances invoke Order 23 Rule 1 (3) of the Code." 23. In 1998 (3) CTC 571 (cited supra), this Court held as follows: "4. While dealing with the similar issue, in Basudeb Narayan v. Shesh Narayan, AIR 1979 Pat.73, the learned Judge has dealt with the right of the plaintiff and has held as follows:- "The principles which can be deduced out of the cases https://hcservices.ecourts.gov.in/hcservices/ aforesaid are clearly the following:- (1) The plaintiff under sub-r.(1)of Rule 1 of Order 23 of the Code has a right to withdraw a suit at any stage; (2) that such a right of the plaintiff is limited to the extent that it does not result in defeating a right which has already vested in the defendant, such a right may have become vested in the defendant either on account of a compromise or a concession or a decree or an award or similar circumstances; (3) that in a partition suit every defendant is virtually in the position of a plaintiff, his claim being founded on a claim similar to that of the plaintiff; and (4) that 0.23, R. 1 sub-r.(l) of the Code applies even to a partition suit, subject to the aforesaid limitation." 5. The apex court while dealing with similar issue in R.Ramamurthi v. V.Rajewararao, AIR 1973 SC 643 has held as follows:- "Even if the plaintiff does not wish to prosecute that suit or wishes to withdraw it the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their share partitioned. It has further been emphasised that in a partition suit the plaintiff is not wholly dominus litis and even on the assumption that S. 3 confers a privilege or an option on the shareholder who is a defendant in a suit for partition the plaintiff is debarred from defeating the exercise of that privilege or option by resorting to the device of withdrawing a suit under Order 23, Rule 1". From the abovesaid decisions it is very clear that the plaintiff has no absolute right to withdraw the suit ignoring the other share holders. In this case, the plaintiff has specifically accepted the share of the petitioner/first defendant, and with the intention of avoiding the first defendant, he was given up and they have entered into compromise with the other defendants though the first defendant has claimed his right and paid the court fee." 24. In the above decision, it is made clear that the plaintiff has no such absolute right to withdraw a partition suit as in a partition suit, the plaintiff is not wholly dominus litis. 25. In 1984 (1) MLJ 28 (cited supra), this Court held as under: "7. The Civil Procedure Code, confers a discretion on the Court to grant to a plaintiff in a suit permission to withdraw the suit with liberty to institute