SIVAKUMAR Vs. LINGAPPA MUDALIYAR

JUDGEMENT

(1.) THE order under challenge in this revision is in I. A. No. 186 of 2007 in O. S. No. 336 of 2002 on the file of Court of the Additional District Munsif, Kancheepuram. The said application was filed by the plaintiff under Order 23 Rule 1 of CPC. The main reason for withdrawal of the suit, according to the plaintiff, is that he had filed an amendment application under I. A. No. 1398 of 2005 in O. S. No. 336 of 2002 under Order 6 Rule 17 of CPC to amend the prayer in the plaint is for permanent injunction for restraining the respondent from allotting plots to the villagers. But subsequently, the suit property has lost the character of Samudayam purpose viz. , for weaving operations and it has got to be converted as house site plots. The plaintiff thought it fit that it necessary to have a scheme decree for the welfare of the villagers. The suit was filed under representative capacity of the villagers of Thimmarajampettai Village, Kancheepuram Taluk. Since the said amendment application in I. A. No. 1398 of 2005 was dismissed, according to the plaintiff, he could not proceed with the suit and accordingly filed an application in I. A. No. 186 of 2007 under Order 23 Rule 1 of CPC to withdraw the present suit with a liberty to file a fresh comprehensive suit on the same cause of action. All the objections raised by the learned counsel appearing for the petitioners have been raised in the counter filed by the respondents in I. A. No. 186 of 2007. After going through the averments in the affidavit to the petition as well as the objections raised in the counter filed by the respondents, the learned trial Court has come to a conclusion that the application filed under Order 23 Rule 1 of CPC in I. A. No186 of 2007 is liable to be allowed.

(2.) THE learned counsel appearing for the revision petitioners relying on a decision reported in Bakhtawar Singh-vs- Sada Kaur (AIR 1998 Punjab and Haryana) would contend that the plaintiff has not shown before the trial Court any formal defect which would end in dismissal of his suit to avail the benefits conferred under Order 23 Rules 1 and 2 of CPC. The facts of the said case is entirely different from the facts of the case on hand. There was no material placed in the case cited to show that the plaintiff is liable to be non-suited on the ground that the suit was not maintainable and the said suit was also barred by limitation. Only under such circumstances, the Court thought it fit not to allow the application filed by the plaintiff under Order 23 Rule 1 and 2 of CPC.

(3.) BUT in the case on hand, the plaintiffs on the basis of the subsequent events, like the suit property itself has been lost the character of Samudayam Purpose viz. , for weaving operations has been converted as house site plots, filed an application to amend the plaint for better appreciation but unfortunately, I. A. No. 1398 of 2005 in O. S. No. 336 of 2002 filed under Order 6 Rule 17 of CPC was dismissed. Now under such precarious condition, the plaintiffs have filed an application in I. A. No. 186 of 2007 under Order 23 Rule 1 of CPC for withdrawal of the suit to file a fresh suit on the same cause of action which has rightly been allowed by the Court below. Under such circumstances, I do not find any reason to interfere with the well considered order of the learned Additional District Munsif, Kancheepuram in I. A. No. 186 of 2007 in O. S. No. 336 of 2002 to warrant any interference from this Court.