IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11.02.2011 Coram: THE HONOURABLE MRS. JUSTICE R. BANUMATHI and THE HONOURABLE MR. JUSTICE M.DURAISWAMY O.S.A.No.88 of 2010 & M.P.Nos. 1 and 2 of 2010 S.Balasubramanian ... Appellant v. 1. B.K.Krishnamurthy 2.Rajni Foundation Pvt. Ltd., Rep. By its Managing Director 2. Damodaran street T.Nagar, Chennai – 17. .. Respondents This Appeal is preferred against the order of this Court dated 24.02.2010 made in A.No.549 of 2010 in C.S.No.711 of 2007. For Appellant : Mr.P.H.Arvind Pandian For Respondents : Mr.R.Thiagarajan – for R-1 Mr.T.V.VineethKumar – for R-2 JUDGMENT M.DURAISWAMY,J, This Original Side Appeal arises against the order and decreetal order of the learned single Judge made in Application No. 549 of 2010 in C.S.No.711 of 2007. 2. The first defendant in the suit is the appellant, the first respondent was the plaintiff and the second respondent was the second defendant in the suit. The plaintiff filed the application NO.549 of 2010 under Order XXIII, Rule 1 C.P.C. to permit him to withdraw the suit in C.S.No.711 of 2007 with a liberty to file a fresh suit on the same cause of action and also to direct the return of the original documents filed along with the suit. https://hcservices.ecourts.gov.in/hcservices/ 3. The first respondent filed C.S.No.711 of 2007 on the file of this court for declaration and permanent injunction. 4. According to the first respondent/plaintiff, on 22.7.1999, the appellant/first defendant's father, viz., S.Sundaram Pillai, entered into a joint venture agreement with the first respondent/plaintiff for the purchase and development of the suit property and a sum of Rs.13,73,942/- was paid by each of them to the Tamil Nadu Housing Board towards part of the sale consideration and they also agreed to pay the balance sale consideration equally and to contribute equally for the development of the property and to share the profits and gains equally. The said Sundaram Pillai died on 3.1.2003 leaving behind his legal heirs. Thereafter, a deed of memorandum of understanding was entered into between the first respondent and the appellant and it was confirmed that the first respondent and the appellant's father S.Sundaram Pillai entered into a joint venture agreement to develop the suit property. On 9.12.2003, the Tamil Nadu Housing Board executed a deed of sale in favour of the appellant in respect of the suit property. While so, the appellant took hasty steps to alienate the property unilaterally without any consultation with the first respondent and without any reference to the joint venture agreement as well as the memorandum of understanding. In these circumstances, the first respondent/plaintiff filed the suit. 5. The first respondent filed an application in A.No.549 of 2010 in C.S.No.711/2007 to withdraw the said suit with liberty file a fresh suit on the same cause of action and also to direct the return of the original documents filed along with the suit. 6. In the affidavit filed in the said application, the first respondent contended that his previous counsel, without proper understanding and appreciation of facts in controversy, has filed the suit for declaration and for permanent injunction in C.S.NO.711 of 2007. According to the first respondent, the counsel ought to have sought for, having regard to the existence of joint venture agreement dated 22.7.1999 and the subsequent memorandum of understanding dated 21.1.2003. Therefore, the first respondent filed an application in A.No.4229 of 2008 for amendment of the plaint by deleting the prayer and substituting the same by the relief of specific performance. The first respondent also filed an Application No.1950 of 2008 to implead the legal heirs of late S.Sundaram Pillai. By order dated 14.9.2009, this court dismissed both the applications. Aggrieved over the same, the first respondent preferred two appeals in O.S.A.Nos.439 and 440 of 2009. A Division Bench of this court, dismissed both the appeals on 6.1.2010. According to the first respondent, there is a technical flaw in the relief claimed in the suit. According to him, his erstwhile counsel instead of filing the https://hcservices.ecourts.gov.in/hcservices/ suit for specific performance, filed a suit for declaration and injunction. In these circumstances, the first respondent, filed the application to permit him to withdraw the suit with liberty to file a fresh suit on the same cause of action. 7. The appellant, in his counter filed in Application No.549 of 2010, stated that the first respondent had filed two applications namely, O.A.Nos. 968 and 969 of 2007, one for interim injunction restraining the respondents therein from alienating the suit property and another, not to put up any construction in the suit property pending disposal of the suit. These applications were dismissed and as against the order passed in the said applications, the first respondent filed appeals in O.S.A. Nos. 4 and 5 of 2008, which were also dismissed by this court. Thereafter, the first respondent preferred appeals before the Hon'ble Supreme Court in S.L.P. Nos. 30761 and 30762 of 2008 and the Hon'ble Supreme Court also dismissed the appeals. Thereafter, the first respondent filed an application No.1950 of 2008 for impleading the legal heirs of S.Sundaram Pillai and filed an Application No.4229 of 2009 for amendment of the plaint. This court dismissed both the applications and against which, the first respondent preferred appeals in O.S.A. Nos. 439 and 440 of 2009 and the appeals were also dismissed by this court. According to the appellant, the suit property was originally allotted to the appellant's father S.Sundaram Pillai by the Tamil Nadu Housing Board through their allotment letter dated 6.9.1996. On 5.9.2002, the possession of the plot was handed over. On 3.1.2003, the appellant's father had died. Since the appellant is the only male legal heir, with the consent of other legal heirs, the sale deed was executed in his favour on 9.12.2003 by the Tamil Nadu Housing Board. The appellant had not entered into any memorandum of understanding with the first respondent. After failing in his attempt to get any relief in the present suit, the first respondent now seeks to withdraw the present suit with a liberty to file a fresh suit on the same cause of action. In these circumstances, the appellant prayed for dismissal of the application. 8. The learned single judge after taking into consideration the case of both sides, allowed the application thereby permitting the first respondent to withdraw the suit with liberty to file a fresh suit on the same cause of action. 9. Aggrieved over the order of the learned single Judge, the first defendant/first respondent has filed the above appeal. 10. Heard Mr.P.H.Arvind Pandian learned counsel appearing for the appellant, Mr.R.Thiagarajan, learned counsel appearing for the first respondent and Mr.T.V.Vineeth Kumar, learned counsel appearing for the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 11. On a careful consideration of the materials available on record and and on the submissions made by the respective counsels, the following points arise for consideration in this appeal:- " i) Whether the learned single judge has properly exercised the discretion vested under Order XXIII Rule 1 (3) CPC on the relevant aspects of the matter? (ii) Whether the appellant is right in contending that sufficient grounds do not exist for withdrawal of the suit with leave to file a fresh suit?" 12. The first respondent/plaintiff filed two applications, one in O.A.No.968 of 2007, for an injunction restraining the defendants from putting up any construction and another in O.A.NO.969 of 2007, for an injunction restraining the defendants from alienating the property. By order dated 1.10.2007, this court dismissed both the applications. Against the order of dismissal, the first respondent/plaintiff filed appeals in O.S.A. Nos. 4 and 5 of 2007. A Division Bench of this court dismissed both the appeals on 13.11.2008. It is relevant to extract a portion of the order passed in O.S.A.Nos. 4 and 5 of 2008, which reads as follows:- " 18. ... A cursory glance at the above said documents will make it clear that the proper course to be adopted by the appellant, who is admittedly not in possession of the suit property, is to seek specific performance of the contract and not for declaration of the supposed title of the appellant in the suit property and for injunction." 13. Against the order of the Division Bench in O.S.A.Nos. 4 and 5 of 2008, the first respondent/plaintiff filed Special Leave Petitions before the Hon'ble Supreme Court in S.L.P. Nos.30761 and 30762 of 2008, which were also dismissed by the Hon'ble Supreme Court on 7.1.2009. After the dismissal of the Special Leave Petitions, the first respondent filed two applications, one in A.No.1950 of 2008, seeking to implead the legal representatives of the deceased S.Sundaram Pillai and another in A.No.4229 of 2008, for an amendment of the plaint seeking to change the prayer from declaration into one for specific performance of the Joint venture Agreement dated 22.7.1999. The learned single Judge dismissed both the applications. The learned single Judge dismissed the amendment application on the ground that the amendment would amount to the first respondent/plaintiff putting forth a new case and further it is also barred by limitation. 14. Against the order of the learned single Judge, the first https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff preferred appeal in O.S.A. Nos. 439 and 440 of 2009, which were also dismissed by the Division Bench of this court on 6.1.2010. After the dismissal of O.S.A.Nos. 439 and 440 of 2009, the first respondent/plaintiff filed the present application under Order XXIII Rule 1 CPC to withdraw the suit with a liberty to file a fresh suit on the same cause of action. 15. The learned counsel appearing for the appellant contended that since this court already rejected the application filed by the first respondent/plaintiff for amendment of the plaint seeking to change the prayer from declaration to one for specific performance, the learned single Judge ought not have permitted the first respondent/plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action. That apart, learned counsel also contended that the prayer for specific performance is also time barred. 16. The learned counsel appearing for the appellant, in support of his contention, relied upon the following judgments:- (i) 2000(5) SCC 458 (K.S.Bhoopathy and others v. Kokila and others) wherein, the Hon'ble Apex Court held that before granting permission for withdrawal of the suit, the court is duty bound to satisfy itself that proper grounds exist for granting such permission. Further held that when such permission is granted at the first or second appellate stage, prejudice to the defendant is writ large, because he loses the benefit of the decision in his favour by the lower court. (ii) 1982 (2) MLJ 400 (K.Chinna Vaira Thevar v. S.Vaira Thevar) wherein, a Division Bench of this court held that the failure or inability of the plaintiff to secure necessary evidence to support his case will not be a ground as contemplated in Order 23, Rule 1 (3)(b) of CPC. The facts and circumstances of the case on hand differs from the facts and circumstances of the case cited above. Therefore, the said judgment is not applicable to the present case. 17. Countering the submissions made by the learned counsel appearing for the appellant, learned counsel appearing for the respondents in support of his contention relied upon the following judgments:- (i) AIR 2000 SC 2132 (K.S.Bhoopathy and others v. Kokila and others) wherein, the Hon'ble Apex court held that it is the duty of the court to feel satisfied about the existence of proper grounds for granting permission for withdrawal of the suit with liberty to file a https://hcservices.ecourts.gov.in/hcservices/ fresh suit and merely stating that grant of permission would not prejudice defendants is not compliance with statutory mandate. (ii) AIR 1968 SC (III) (Hulas Rai Baij Nath v. Firm K.B . B ass and Co.). (iii) AIR 1970 SC 987 (Vallabh Das v. Dr. Madanlal and others) (iv) 1983(3) SCC 75 (M/s. M.Ramnarain Private Limtied and another v. State Trading Corporation of India Limited) (v) 1987(1) SCC 5 Sarguja Transport Service v. State Transport Appellate Tribunal) (vi) 2005(5) SCC 458 (K.S.Bhoopathy and others v. Kokila and others) (vii) 2009(6) SCC 194 (Sneh Gupta v. Devi Sarup and others) and also relied upon an unreported judgment in S.L.P.(C) Nos.25043 to 25045 of 2008, dated 6.9.2010. There is no dispute with regard to the legal prepositions laid down in the above referred judgments. 18. It is pertinent to note that, based on the liberty granted, the first respondent/plaintiff had already filed a suit in C.S.No.266 of 2010 for specific performance of the agreement of sale dated 22.7.1999 entered into between the first respondent and late S.Sundaram Pillai with the subsequent joint development agreement dated 21.1.2003 entered into between the first respondent and the first defendant, after the orders were passed in Application No.549 of 2010 in C.S.No.711 of 2007. 19. In Paragraph No.18 of the judgment in O.S.A.Nos. 4 and 5 of 2008, which has been extracted above, the Division Bench of this court observed that the proper remedy for the first respondent/plaintiff is to seek specific performance of the contract and not for declaration of his supposed title in the suit property and for injunction. 20. It is also pertinent to note that the appellant/first defendant has not filed his written statement in C.S.No.711 of 2007. The second defendant is an agreement holder, who has allegedly developed the property into a complex and sold it to third parties. The dispute is only between the appellant and the first respondent. The contention of the appellant that withdrawal of the suit with liberty to file a fresh suit cannot be granted to the first respondent/plaintiff in view of the findings given by this court in A.No.1950 of 2008 and A.No.4228 of 2008 cannot stand in the way of first respondent/plaintiff withdrawing the suit with liberty to file a fresh suit on the same cause of action, since the present petition filed under Order XXIII, Rule 1 is completely different from the https://hcservices.ecourts.gov.in/hcservices/ factors for consideration under Order I, Rule 10 CPC and Order XXXIX, Rule 1 & 2 CPC, the defect in the prayer sought for by the first respondent/plaintiff was also pointed out by the Division Bench in O.S.A.Nos. 4 and of 2008. Even in the affidavit field in support of the petition, the first respondent has specifically stated that there was a defect in the prayer sought for in the suit. The learned Single Judge, while allowing the application under Order XXIII, Rule 1 CPC, rightly found that irrespective of whether the plaintiff was entitled to specific performance or not, he would atleast be entitled to recovery of money, if he had actually paid any money to the father of the appellant/first defendant and if the claim is within the period of limitation. The learned single Judge also rightly found that a person, who claims to have made payment of a sum of Rs.13,73,942/- on 22.7.1999 and also claims to have made payment of 50% of the future installments, cannot be non-suited and driven to go empty handed, if his claim is actually true. 21. So far as with regard to the claim of first respondent/plaintiff is concerned, the same can be decided only in trial. Since the prayer in C.S.No.711 of 2007 is defective, preventing the first respondent/plaintiff from withdrawing the suit, which was filed with defective prayer and giving him liberty to file fresh suit on the same cause of action would only cause injustice to him. 22. So far as the contention of the learned counsel appearing for the appellant that the prayer for specific performance is barred by limitation is concerned, it is needless to say that the said defects can be raised by the appellant/first defendant in the suit filed by the first respondent/plaintiff for specific performance in C.S.No.266 of 2010, which is pending before this court. Therefore, merely because the liberty was given to the first respondent/plaintiff to file a fresh suit on the same cause of action, that will not prevent the appellant/first defendant from raising the defences available to him. Therefore, the first respondent/plaintiff made out sufficient grounds for withdrawing the suit in C.S.No.711 of 2007 with liberty to file a fresh suit on the same cause of action. 23. The learned single Judge has exercised the discretion vested under Order XXIII, Rule 1(3) CPC after getting satisfied that there are sufficient grounds, permitted the first respondent/plaintiff to withdraw the suit with liberty to file a fresh suit. 24. As already stated, pursuant to the order passed in A.No.549 of 2010 in C.S.No.711 of 2007, the first respondent/plaintiff had also filed a suit in C.S.No.266 of 2010 before this court for specific performance and for other reliefs. At this stage, if the liberty given to the first respondent/plaintiff is set aside, it would only cause prejudice and hardship to him. https://hcservices.ecourts.gov.in/hcservices/ 25. Therefore, applying the principles laid down in the above referred judgments, we are of the considered view that the order of the learned single Judge does not warrant any interference. The appeal is liable to be dismissed. We make it clear that we have not expressed any opinion on the merits of the matter. Accordingly, the Original Side Appeal is dismissed. Consequently, connected miscellaneous petitions are closed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rj To The Sub Asst. Registrar, Original Side, High Court,Madras. +1cc to Mr.P.H.Arvindhpandian, Sr 10650 +1cc to Mr.T.V.Vineethkumar, Sr 10559 KM(CO) km/14.2. O.S.A.No.88 of 2010 https://hcservices.ecourts.gov.in/hcservices/