MURUGESAN Vs. ALAMELU AMMAL

JUDGEMENT

(1.) CIVIL Revision Petition is filed against the order dismissing the petition for withdrawal of the suit.

(2.) THE petitioner/plaintiff filed a suit against the respondents/defendants for declaration of his title and for permanent injunction with respect to the suit properties in O.S.No.623 of 1999. THE suit was partly decreed and partly dismissed. Aggrieved against the judgment and decree in O.S.No.623 of 1999, the petitioner/plaintiff preferred an Appeal. Pending appeal, the petitioner/plaintiff filed an application to withdraw the suit with liberty to file a fresh suit with the same cause of action. THE reason assigned in the affidavit filed in support of the petition was that there is flaw in the description of the properties in the original suit as well as in the appeal and that even if the appeal is decided in favour of the petitioner/plaintiff, it will not be fruitful to him. THE decree of the Lower Court with the existing description of property will not yield any solution to the dispute. THE flaw caused is out of divine reason and beyond his control. THErefore, he has sought for leave of the Court to withdraw the suit with liberty to file a fresh suit with the same cause of action.

(3.) THE granting of the permission to withdraw with liberty to bring a fresh suit removes the bar of resjudicata which would otherwise apply, if a fresh suit on the same cause of action is brought. Clause (3) contemplates the circumstances in which the permission could be granted by the Court on its satisfaction namely (i) a suit must fail by reason of formal defect and (ii) 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.