PILLARISETTI GOTILINGAM Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This is a revision petition present ed by the plaintiff in O. S. No. 128/55 on the file of the District Munsifs Court, Nandyal, against an order of that court dated 14-9-1959 rejecting an application by the plaintiff for Permission to withdraw the suit with liberty to institute a fresh suit in respect of the subject matter of the suit.

(2.) The facts relevant for purposes of this revision are these : The plaintiff is a Government employee working as the Commissioner of Nandyal Municipality According to the Service Register, his date of birth is 20-7-1903 and he would be superannuated on the completion of 55 years. While so, he had instituted a suit in the Court of the District Munsif, Nandyal, on 14-6-1958 for a declaration that his correct date of birth was 20-12-1906 and that an alteration should be made to that effect in the Service Register and also prayed for an injunction against the State of Andhra Pradesh to restrain it from enforcing his retirement in accordance with his date of birth as now shown, in the Service Register. 2a. It would appear that it was discovered later that the State of Andhra Pradesh was not served with proper notice, in terms enacted under Section 80 of the Civil Procedure Code, wherefore the plaintiff applied to the court for permission to withdraw from the suit with liberty to file a fresh suit. He alleged that the suit was liable to fail for a formal defect.

(3.) The District Munsif dismissed that application observing that it was a fatal defect and not a formal one and that the petitioner shall be precluded from filing a fresh suit on the same cause of action. It is the correctness of this finding that is canvassed before me.