MOHAMMED MOOSA Vs. MUTHAIAH

JUDGEMENT

(1.) The revision petitioner herein is the plaintiff. In his suit O.S.No.70/2003 on the file of the District Munsif, Thirumangalam, the relief sought is declaration of title and consequential mandatory injunction regarding the suit schedule property and removal of superstructure put up in the suit property. After contesting the suit for 13 years, after examination of DW4 and when the trial is about to be completed, the plaintiff realised certain defect in his suit. Realising that if the defect is not cured, it will lead to dismissal of the suit has filed I.A.No.289/17 under Order 23 Rule 1(3) CPC to withdraw the suit with liberty to institute fresh suit.

(2.) The Trial Court considering the nature of the relief sought and the fresh facts put forth for seeking liberty to withdraw and institute fresh suit has held that the defect in the plaint is not a formal defect which could be cured by permitting to withdraw and file fresh suit. While in the plaint, the plaintiff has averred that he is the owner of the suit property upon which the defendants have encroached and put up construction illegally which warrants declaration of title and mandatory injunction to remove the superstructure, contrary to that plea, he now concedes his title over the property and averred that the suit property is public street. His earlier attempt to amend the plaint to that effect was dismissed. Suppressing the dismissal of his I.A.No.54/14 to amend the plaint, the present I.A.No.289/17 is filed to withdraw the plaint and file fresh suit.

(3.) Aggrieved by the dismissal of the interlocutory application, the present revision petition is filed by the plaintiff on the ground that the impugned order is contrary to the law and the dictum of the High Court. Liberty to file fresh suit withdrawing the present suit can be granted at any stage including the appellate stage if the present suit suffers from formal defect. In this case, the cause of action is same. Due to technical impediment, the plaintiff may loose his case. Hence, leave to withdraw and file fresh suit is just and necessary.