9911796707
TMI Blog2005 (12) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Daughter of Sankara Narayana Pillai, the Plaintiff has filed the Suit in O.S. No. 1826 of 1993 before the High Court for Partition and Separate possession of A and B Schedule Property. A Schedule property consists of six items. Item (vi) of A Schedule property is situated at Chennai. Hence, the Plaintiff has filed the Suit after obtaining leave to sue. When the Suit was pending, due to enhancement of pecuniary jurisdiction of Subordinate Courts, the Suit was transferred to City Civil Court, Chennai and renumbered as O.S. No. 12449 of 1996. Resisting the Suit, the Defendants have filed the Written Statement. The Trial commenced and the Parties also adduced evidence. 3. I.A. No. 10477 of 2004:- At the stage, when the Suit was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdraw the Suit. At the same time, the Trial Court partly dismissed the Petition regarding liberty to file a fresh suit before Sub-Court, Tirunelveli finding that the Application has been belatedly filed at the part heard stage. Learned Judge was of the view that it would not be appropriate to grant leave to file Fresh Suit, at the distant point of time. 6. Aggrieved over the Impugned Order, the Plaintiff has preferred this Revision Petition. Respondents are yet to be served. However, on seeing the Advertisement in the Paper said to have been issued by the Revision Petitioner / Plaintiff, it is stated that only the Third Respondent is the main contesting party. Under such circumstances, notwithstanding the non-service of Notice to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assment to the Third Respondent. 9. The only point that arises for consideration is whether the Trial Court was right in partly allowing the Petition giving permission to withdraw the Suit and dismissing the Suit declining to grant liberty to file a fresh suit. 10. Plaint A Schedule Property consists of six items. The Sixth Item is an extent of 600 Sq.ft with the super structure situated at Door No. 2, Venkatesa Naicken Street, Triplicane, Madras - 5. All other immovable properties - Items (i) to (v) of A Schedule Properties are situated in Tirunelveli. In the Trial Court, the Defendants have raised strong objections as to the maintainability of the Suit in Chennai. The Suit was originally filed in O.S. No. 1826 of 1993 before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be noted that the Application under Order 23 Rule 1(3) of C.P.C is indivisible whole. The Trial Court was not right in separating the prayer for withdrawal and the leave to file a fresh suit. When the Court has declined to grant leave to file a fresh suit, the Trial Court ought to have dismissed the Application in toto. 13. Contending that the Application under Order 23 Rule 1(3) C.P.C is to be treated as an indivisible whole, learned counsel for the Revision Petitioner / Plaintiff has relied upon the decision reported in Veeraswami v. Lakshmudu AIR1951Mad715 . In that case, the Plaintiff filed a Petition to withdraw a suit with permission to file a fresh suit regarding the same subject matter under Order 23 Rule 1 (3) C.P.C and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Sub-rule (2) of Order 23 Rule 1 of C.P.C, it is not open to the Court to treat it as if it is an application under Sub-rule (1) without any condition and to grant the prayer for withdrawal and refuse the prayer for withdrawal and refuse the prayer for permission to bring a fresh suit for the prayer under Sub-rule (2) must be treated as one whole and the court may either reject the entire prayer and allow the suit to proceed or allow the entire prayer, that is, permit the withdrawal of the suit with liberty to bring a fresh suit. the reason is obvious. If the Court grants the petitioner the permission to withdraw but refuses the permission to institute a fresh suit, the result would be that the Plaintiff would be deprived of carrying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information as if the Suit is pending. The maintainability of the Suit is also assailed contending that the filing of the Suit in City Civil Court, Chennai is a gross abuse of process of the Court. The merits of this contention cannot be gone into in this Revision Petition. Such arguments are to be advanced only before the Trial Court, which has seized up the matter. 17. For the foregoing reasons, the Order dated 20.09.2004 passed in I.A. No. 10477 of 2004 in O.S. No. 12449 of 1996 by the VII Assistant Judge, City Civil Court, Chennai is set aside and this Civil Revision Petition is allowed. I.A. No. 10477 of 2004 in O.S. No. 12449 of 1996 is dismissed. No costs. The connected C.M.P. No. 2828 of 2005 is closed. Learned VII Assistant Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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