SARADAMMAL ALIAS SARADAMBAL Vs. G S SRINATH

JUDGEMENT

(1.) THE civil revision petitioner/petitioner/defendant has filed the present civil revision petition as against the order dated 23.03.2008 in I.A.No.1110 of 2007 in O.S.No.77 of 2007 passed by the Principal District Judge, Tiruvallur in dismissing the application filed by the revision petitioner/defendant under Order 2 Rule 2 read with Order 7 Rule 11 of Civil Procedure Code praying to reject the plaint in O.S.No.77 of 2007.

(2.) THE trial Court, while passing orders in I.A.No.1110 of 2007, has inter alia held that 'this Court is of the opinion that the plaintiff discloses cause of action for the suit and therefore, none of the ingredients of Order 7 Rule 11 of Civil Procedure Code is made out and resultantly, dismissed the application.'

(3.) THE learned counsel for the revision petitioner/ defendant contends that the 'grant of leave' is not a matter of right and cites the decision in Kandapazha Nadar & others V. Chitraganiammal & others (2007(3) CTC 767 at 770) wherein the Honourable Supreme Court in para 12 has observed as follows:".12. Order 2, Rule 2 relates to the "relief which can be granted" while Order 23, Rule 1 refers to the "subject matter". THE grant of leave is not a matter of a right. Different subject matters are relatable to provisions contained in Order 23, Rule 1. In both the present and the earlier Suit the subject matter is essentially the same."Further, in the aforesaid decision at page 771 in para 15 and 16, it is observed as follows:".15. In the case of (Rani) Kulandai Pandichi and another V. Indran Ramaswami Pandia THEvan, (AIR 1928 Mad. 416), it has been held as follows:"Permission to withdraw a Suit decides no matters in controversy and does not confer any rights on a party and the fact that the person withdrawing is precluded from bringing a fresh Suit on the same cause of action cannot be said to have that effect. It has been held that an order permitting the withdrawal of a Suit or Appeal is not a decree within the meaning of the Civil Procedure Code. We need only refer to Patlogi V. Gam, 1891 (15) Bom. 370, Jogodindra Nath V. Sarat Sundari Debi, 1891 (18) Cal. 332 and Abdul Hussain V. Kasi Sabu, 1900 (270 Cal. 362)" (emphasis supplied)16. In the case of Saraswati Bala Samanta and others V. Surabala Dassi and others, AIR 1957 Cal. 57, it has been held vide para 3 as follows:"(3)THE order recording the withdrawal of the Suit is not a decree. THEre was no question therefore, of drawing the order as a decree. THE order recording the withdrawal can however be formally drawn up under R.187, Part I, Chapter 1 of the Civil Rules and Orders, Vol.1, inasmuch as the order directed payment of costs by the plaintiff to the defendant. We, therefore, treat the so called decree as an order." (emphasis supplied)