SABAREESAN Vs. PERIYASAMY PADAIYATCHI

JUDGEMENT

(1.) The defendant in O.S.No.87 of 2010 on the file of the Additional District Munsif Court, Perambalur, challenges the liberty granted by the Trial Court to the plaintiff to file a separate suit on the same cause of action, invoking Order XXIII Rule 1 of CPC.

(2.) I have heard Mr.R.Rajaraman, learned counsel for the petitioner and Mr.B.Eswaran, learned counsel for M/s.Swaraj Associate, for the respondent.

(3.) The learned counsel for the revision petitioner would firstly contend that the plaintiff, without even pointing out any formal defect in the plaint, had sought for liberty to file a fresh suit on the same cause of action, invoking Order XXIII Rule 1 of CPC. In this regard, he would take me through the plaint averments in the present suit and also the reasons assigned by the respondent/plaintiff for withdrawing the suit, with liberty to file a fresh suit on the same cause of action. He would further state that when the plaintiff has admitted that there was a partition already in paragraph No.5 of the plaint, there was no requirement for seeking the relief of partition, that too, by withdrawing the suit for declaration and filing a fresh suit on the same cause of action.