M. RAMASWAMY Vs. D. VITTAL AND OTHERS

JUDGEMENT

(1.) The present defendant No.l filed the present revision petition against the order dated 23.11.2016 on I.A. dated 22.8.2016 made in O.S. No.266/2011 rejecting the application filed by defendant No.l with cost of Rs. 500/-.

(2.) The respondent No.l who is the plaintiff before the trial Court filed the suit for partition and separate possession in respect of suit schedule properties contending that the plaintiff and defendants are the members of joint family and there was no partition. The defendants filed the written statement denied the plaint averments and sought for dismissal of the suit. After framing the issues, when the matter was posted for evidence, at that stage, defendant No. 1 filed application under section 151 of Code of Civil Procedure to dismiss the suit as not maintainable contending that earlier suit O.S. No. 176/2006 filed by the plaintiff is for partition and separate possession. During the pendency of the said suit, the plaintiff filed an application to withdraw the suit with a liberty to file fresh suit. The trial Court by an order dated 15.4.2011, the Court permitted the plaintiff to withdraw the suit but did not grant any liberty to the plaintiff to file a fresh suit, could not have on the same cause of action. The plaintiff without obtaining the permission from the Court to file fresh suit, could not have filed the present suit. Therefore, suit is not maintainable. The said application was resisted and specifically stated in para No.4 that the application was filed to withdraw the suit with liberty to file fresh suit. The Court heard, perused and permitted to withdraw the suit. Therefore, the permission deemed to have been granted. Therefore, sought for dismissal of the application.

(3.) The trial Court considering the application and the objections, by the impugned order dated 23.11.2016, dismissed the application filed by defendant No.l. Hence, the present civil revision petition is filed.