A P S BAHURUDEEN Vs. ANTONY

JUDGEMENT

(1.) THIS is an application for permission to withdraw the suit out of which the second appeal has arisen with liberty to file a fresh suit on the same cause of action. The petitioners filed O.S.No.392 of 1980 on the file of District Munsif, Manamadurai for declaration that the suit property is a wakf property and a consequential injunction restraining the respondents from in any way interfering with the peaceful possession of the plaintiffs. The suit has been filed in a representative capacity by the plaintiffs for themselves and as representatives of Muslim residents of the village of Rajagopuram, Sivaganga Taluk, Ramnad District. Defendants 1 and 2 were impleaded as representatives of the Christian community residents of the said village. The third defendant was the Tamil Nadu Wakf Board. The courts below negatived the claim of the petitioners and dismissed the suit. One of the grounds on which the suit has been dismissed is that the State Government is a necessary party and the non-joinder of the Government is fatal to the suit. On the merits also, the courts found the petitioners failed to establish their claim that the suit property is a wakf property in their possession. The concurrent judgments of the courts below were challenged in the second appeal.

(2.) THE second appeal was heard at some length and on 11.9.1990 the arguments concluded and I directed the matter to be posted for judgment on 14.9.1990. On that date, a representation was made by learned counsel for the petitioners that he had advised his clients to withdraw the suit and the matter was being considered by the members of the community. He prayed for an adjournment. I adjourned the matter to 21.9.1990. THEre were some subsequent adjournments at the instance of the petitioners and on 19.10.1990 the present petition for withdrawal was filed. THE prayer as it stood at that time was for permission to withdraw the second appeal with liberty to file a fresh suit on the same cause of action. When the matter came up on 24.10.1990 for orders, learned counsel for the petitioners realised the mistakes in the prayer and requested for permission to file a supplemental affidavit and correct the prayer in the petition. That was granted and the matter was posted to 26.10.1990.

(3.) PER contra, learned counsel for the respondents contended that non-joinder of a party is not a formal defect and the discovery of the alleged material documents is not a ground for permitting the suit to be withdrawn. Learned counsel contended that the documents have been filed along with a petition to accept them as additional evidence in the second appeal and they do not help the petitioners in any manner to prove their case on merits. Even if the petitioners had no knowledge of the documents previously, that would not enable them to withdraw the suit at the second appeal stage in order to have a fresh trial with more evidence. It was also argued that the alleged defect in the framing of the plaint in the prayer paragraph is not a defect at all. The relief of injunction has been prayed for as a consequence to the relief of declarations. It was argued that two courts have considered the case on merits and held against the petitioners and if they are permitted to withdraw this suit and file a fresh suit, it would affect considerably the rights vested in the respondents. It was also argued that the only ground on which a suit could be permitted to be withdrawn is that it suffers from a formal defect or defects analogous to it.