KARUPPA GOUNDER Vs. M PALANISAMY

JUDGEMENT

(1.) The revision petitioners are the plaintiffs in O.S.No.367 of 1997 on the file of District Munsif of Gobichettipalayam. They have filed an application under Order 23 Rule (1)(3) and Section 151 CPC seeking permission of the court to withdraw the suit and to file fresh suit on the very same cause of action and the said petition was allowed to the extent that the petitioners/plaintiffs were permitted to withdraw the suit. But however, permission to file fresh suit on the very same cause of action was refused. Aggrieved by the same, the plaintiffs have preferred this revision petition.

(2.) Heard the learned counsel for the petitioners and the respondents.

(3.) In the petition filed before the trial court it is stated that the suit was filed with regard to a cart track, which according to the petitioners is running in SF Nos.679/1,679/2, 679/3 is on the eastern side of the cart track. The respondents 1 and 2 never used the suit cart track. The physical features will also clearly show that the suit cart track is only in S.F.Nos.679/1 and 679/2. Further the respondents in their written statement stated that the suit cart track is running only in S.F.Nos.679/3. The plaintiffs filed application for the appointment of a commissioner to find out the exact position of the cart track. The advocate-commissioner was appointed and also filed report stating that the suit cart track is running in S.F.Nos.679/1, 679/2 and 679/3 also. The plaintiffs came to know about the same only on the report filed by the advocate commissioner. Pursuant to the same, the plaintiffs filed petition to amend the plaint for the inclusion of S.F.No.679/3 and the same was dismissed. The plaintiffs also preferred C.R.P.No.505 of 2003 before this court and it was also dismissed. The plaintiffs have stated that if the suit is proceeded with as it is, there is every possibility to dismiss the suit, as S.F.No.679/3 was not included. The mistake committed was beyond their control and they bonafidely believed that the suit cart track is running in S.F.Nos.679/1 and 2. The said defect could be rectified only by withdrawal of the suit and file a fresh suit on the same cause of action.