9911796707
TMI Blog2003 (9) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved by the judgment and decree passed by the trial court, the petitioners herein have preferred A.S. No. 275 of 2002. Pending appeal, the petitioners have filed I.A. No. 8 of 2002 under Order 23 Rule 1 (3) CPC seeking permission of the Court to withdraw the suit with liberty to file a fresh suit on the same cause of action. After affording opportunity to both sides, the first Appellate Court dismissed the application, which is challenged in this revision. 2. Mr. Valliappan, learned counsel appearing for the petitioners submitted that the first Appellate Court erred in dismissing the application filed under Order 23 Rule 1 (3) CPC without following the principles enunciated therein; that the Court below failed to note that the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btain 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties trace their title and possession of the suit property by producing so many documents, adducing oral evidence before the trial court and on the basis of the evidence by which the trial court decided the right of the parties and if the petition is allowed as prayed for, it will affect the vested right of the respondent herein and ultimately dismissed the application to withdraw the suit. 14. The respondent relied on the decision of the Supreme Court reported in (Rathinavel Chettiar Vs . Sivaraman) [1999]2SCR313 before the lower Appellate Court wherein it was held that withdrawal of suit at appellate stage having effect of destroying or nullifying the decree affecting the rights of the parties vested under the decree cannot be allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
