CHURCH OF SOUTH INDIA TIRUNELVELI DIOCESAN TRUST ASSOCIATION TUTICORIN PASTORATE COMMITTEE Vs. V PONKASAMUTHU

JUDGEMENT

(1.) SINCE the issue involved in all the civil revision petitions are common, they are being dealt with by way of common order.

(2.) THE respondents herein filed different suits against the petitioner herein in respect of different properties seeking a decree for injunction. THE trial court dismissed all the suits. Aggrieved by the same the respondent filed appeals A. S. Nos. 132 of 137 of 1990 on the file of the Sub Court , tuticorin. While these appeals were pending, the respondents herein filed I. A. Nos. 268 of 173 in A. S. No. 137 of 1990 respectively seeking permission to withdraw the suit with liberty to file a fresh suit on the ground that the petitioner herein had filed another suit O. S. No. 54 of 1990 against the government for declaration and injunction and since the respondents did not expect that the petitioner herein would divest their ownership in respect of the suit properties, he did not ask for declaration and hence the suits have been filed only for bare injunction. Now in order to file a comprehensive suit, it is necessary that the present suits have to be withdrawn and permission is to be granted to file a fresh suit on the same cause of action.

(3.) IN R. Thiagarajan v. Meenakshi Ammal, (1996)2 C. T. C. 127, it is held that in accordance with 0. 23, Rule 1 (3), the plaintiff can be permitted to withdraw the suit only where the suit must fail by reason of some formal defect. It is further observed as follows: 'IN such a situation, as rightly pointed out by the learned Counsel for the petitioner, there is no case at all for invoking 0. 23, Rule 1 (3) of the Code of Civil Procedure. The said rule says: ' Where the court is satisfied: (a) that a suit must fail by reason of some formal defect, or (b) that 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, it may, on such terms as it thinks fit, grant the palintiff permission to withdraw from such suit. . . with liberty to institute a fresh suit in respect of the subject matter of a such suit.' It is clear to me that there is no formal defect involved at all in the present case. If really the plaintiff wanted to further amend the plaint, even after the abovesaid I. A. No. 16657 of 1990 he could have filed immediately after the abovesaid LA. No. 16657 of 1990 was filed necessary application for amending the plaint without doing so, only in 1995, the present la. is filed. O. 23, Rule 1 (3) of the Code of Civil Procedure cannot be invoked unless the suit must fail by reason of some formal defect. No doubt, in clause (b) of the said Rule 3, it is mentioned that even for sufficient grounds similar relief could be granted. But even then the term' sufficient grounds' have been interpreted to mean grounds skin to the earlier mentioned ground of formal defect. At any rate, the claim made in the I. A. , cannot at all be a sufficient ground for invoking O. 23, Rule 1 (3)of the Code. The plaintiff could have very well filed an I, A. seeking amendment of the plaint. Without filing an application for amendment of the plaint, (if really any new amendment is necessary) he cannot in the above circumstances invoke 0. 23, Rule 1 (3) of the Code.'