DEVI KARUMARIAMMAN TEMPLE Vs. V SATCHIDANANDAM

JUDGEMENT

(1.) THE petitioner is the plaintiff in O. S. No. 4346 of 2006 on the file of XV Assistant Judge, City Civil Court, Chennai. While the matter was posted for arguments, he filed application in I. A. No. 21967 of 2008 under Order 23 Rule 3 (b) read with Section 151 C. P. C. , seeking permission to withdraw the suit with liberty to raise all the contentions in the appropriate proceedings in the appropriate forum.

(2.) IN the affidavit, the petitioner has stated that he filed the present suit for declaration, declaring the judgment and decree passed in O. S. No. 7770 of 2000 is not binding on the plaintiff temple; that the main issue is, whether any temple is in existence or not. In fact, the defendant has categorically admitted in both the proceedings as well in the cross-examination that there is an "amman Statue" inside the suit property and that the first defendant has already filed E. P. No. 576 of 2004 on the file of the Xth Assistant Judge, City Civil Court, Madras and he is also taking steps to execute the same; that especially under Order 21 Rule 97 CPC. , he is advised to state that he has to raise all the contentions before the Execution Court only and hence, he may be permitted to withdraw the suit with liberty to raise all the contentions raised in the present suit before the appropriate forum and that no prejudice will be caused to the other side in granting such prayer.

(3.) IN the counter affidavit filed by the first respondent, it is stated that the allegations in the affidavit are not in conformity with the provisions under Order 23 Rule 1 (3) (b) CPC; that the reasons adduced in the affidavit are not the sufficient grounds within the meaning of Order 23 Rule 1 (3) (b) CPC; that, as on today, the petitioner is not an obstructor in E. P. No. 576 of 2004; that anticipating any future happenings, he cannot file this application; that elaborate trial has to be conducted in the above suit and both oral and documentary evidence are available on record for the effective adjudication of the issues in the suit; that in order to avoid multiplicity of proceedings, the suit has got to be decided on merits, and that the petitioner/plaintiff has taken the precious time of the trial Court, appellate Court and also the High Court, Madras for various proceedings relating to the present suit and harassed this respondent to a maximum extent and hence, he cannot be permitted to withdraw the suit with liberty. 3 (i ). The Execution Court has passed an order, dated 14. 09. 2004, on merits in E. P. No. 576 of 2004, directing delivery of possession. When the Court bailiff went to effect delivery, the second defendant in the suit has set up one S. Govindaraj to obstruct the execution, stating that he entered into an agreement with M. Munirathinam. This respondent filed E. A. No. 4685 of 2005 for removal of obstruction and the obstructor has filed E. A. No. 1647 of 2006. After recording evidence on both sides, the Execution Court allowed the application filed by this respondent and dismissed E. A. No. 1647 of 2006. The obstructor, S. Govindaraj and the plaintiff are working for a common goal of delaying the execution proceedings. With the mala fide motive of delaying the proceedings, the petitioner filed the above E. A. , and if the permission is granted to her, she will try to delay the execution proceedings in E. P. No. 576 of 2004 for another 3 or 4 years. Hence, the petition has to be dismissed.