9911796707
TMI Blog2017 (1) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants-plaintiffs is that originally the suit property was the ancestral property of Annasamy Pandian, who is the father of the Respondent-Karthyayani Natchiar herein and the patta for the entire suit property was issued in the name of Annasamy Pandian and his relatives (Pangaligal). The said Annasamy Pandian appointed one Thangaraj as his power agent to deal with his property by a registered Power of Attorney Deed dated 09.09.1999. Based upon the said Power of Attorney, the Appellants purchased the said suit property from Thangaraj under four sale deeds i.e. 50 cents each. The Appellants being husband and wife, fenced the suit property purchased by them and possessed and enjoyed the same as a single property. The Tahsildar of Kadaladi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit property to him. Parties have also litigated before the Revenue Court regarding transfer of patta. 5. The trial in the suit commenced; witnesses were examined on both the sides. After the suit was posted for judgment, on application filed by the Appellants for raising additional issues and for examining additional witnesses, the suit stood adjourned. At that stage, the Appellants filed the application for withdrawal of the suit in terms of Order XXIII Rule 1 (3) Code of Civil Procedure. The District Munsif allowed the application filed by the Appellants seeking withdrawal of the suit with liberty to file a fresh suit and directed the Appellants to pay cost of Rs. 3,000/- to the Respondents. Being aggrieved, the Respondents filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit. It was submitted that without proper appreciation of the points raised by the Appellants, the High Court erred in setting aside the order passed by the trial court. 7. The Respondents were served but none appeared for the Respondents. We have heard learned Counsel for the Appellants and perused the impugned order and the materials on record. 8. The High Court vide impugned order held that the defect mentioned by the Appellants in the application seeking withdrawal of suit, is not a "formal defect" and that the provision of withdrawal of the suit contemplated under Order XXIII Rule 1(3) Code of Civil Procedure cannot be allowed to be misused by the parties. The High Court took note of the fact that the Appellants participated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to allow withdrawal of a suit is discretionary. In the application, the Plaintiff must make out a case in terms of Order XXIII Rule 1 (3) (a) or (b) Code of Civil Procedure and must ask for leave. The Court can allow the application filed under Order XXIII Rule 1 (3) Code of Civil Procedure for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the Clauses (a) or (b) that is, existence of a "formal defect" or "sufficient grounds". The principle under Order XXIII Rule 1 (3) Code of Civil Procedure is founded on public policy to prevent institution of suit again and again on the same cause of action. 10. In K.S. Bhoopathy and Ors. v. Kokila and Ors. (2000) 5 SCC 458, it has been held that it is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Court may permit the Plaintiff to withdraw the suit. In interpretation of the word "sufficient grounds", there are two views: One view is that these grounds in Clause (b) must be "ejusdem generis" with those in Clause (a), that is, it must be of the same nature as the ground in Clause (a) that is formal defect or at least analogous to them; and the other view was that the words "other sufficient grounds" in clause(b) should be read independent of the words a 'formal defect' and Clause (a). Court has been given a wider discretion to allow withdrawal from suit in the interest of justice in cases where such a prayer is not covered by Clause (a). Since in the present case, we are only concerned with "formal defect" envisaged under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithdraw the suit with liberty to file a fresh suit. Based on the order passed by the trial court, the Appellants have already filed suit before District Munsif and the same is numbered as O.S. No. 11/2015. The High Court while passing the order on 09.03.2015 does not seem to have kept in view the said suit filed by the Appellants. In the facts and circumstance of the case, the impugned order passed by the High Court cannot be sustained. 14. The Appellants have filed the suit bearing O.S. No. 89 of 2004 way back in 2004 after the witnesses on either side were examined and the application I.A. No. 424 of 2014 was filed under Order XXIII Rule 1 (3) Code of Civil Procedure seeking withdrawal of the suit in the year 2014, after substantial prog ..... X X X X Extracts X X X X X X X X Extracts X X X X
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