Case Note & Summary
The case arises from a suit for partition and separate possession filed by the plaintiff (first respondent) in O.S. No.169 of 2008 before the District Munsif Court, Panruti. The plaintiff, along with her siblings, sought partition of ancestral properties. During the pendency of the suit, the plaintiff filed I.A. No.197 of 2022 under Order XXIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908, seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The plaintiff contended that certain properties and parties were inadvertently omitted and needed to be included. The Trial Court allowed the application by order dated July 11, 2023, granting the plaintiff liberty to file a fresh suit. The fourth defendant (revision petitioner) challenged this order under Article 227 of the Constitution of India, arguing that the Trial Court had not applied its mind and that the order was passed mechanically. The High Court examined the impugned order and found that the Trial Court had recorded reasons, including the plaintiff's submission that additional properties and parties were required to be impleaded. The High Court held that the Trial Court had exercised its discretion properly and that the order did not suffer from any illegality or perversity. The revision petition was dismissed, and the connected miscellaneous petition was closed.
Headnote
A) Civil Procedure - Withdrawal of Suit - Order XXIII Rule 1 read with Section 151 CPC - Discretion of Trial Court - The plaintiff sought withdrawal of a partition suit with liberty to file a fresh suit on the same cause of action, citing the need to include additional properties and parties. The Trial Court allowed the application. The revision petitioner (defendant) challenged the order under Article 227 of the Constitution of India, alleging non-application of mind. The High Court held that the Trial Court had exercised its discretion judiciously and that the order did not suffer from any perversity or jurisdictional error. The revision was dismissed. (Paras 1-12) B) Civil Procedure - Revision under Article 227 - Scope of Interference - The High Court, while exercising supervisory jurisdiction under Article 227, can interfere only if the subordinate court has acted without jurisdiction, in excess of jurisdiction, or has committed a manifest error resulting in grave injustice. In the present case, the Trial Court's order was found to be within its discretion and not warranting interference. (Paras 10-12)
Issue of Consideration
Whether the Trial Court was justified in allowing the plaintiff to withdraw the suit with liberty to file a fresh suit under Order XXIII Rule 1 CPC, and whether the impugned order suffers from non-application of mind.
Final Decision
The High Court dismissed the Civil Revision Petition, upholding the Trial Court's order dated July 11, 2023, and closed the connected miscellaneous petition. No costs.
Law Points
- Order XXIII Rule 1 CPC
- Section 151 CPC
- Article 227 Constitution of India
- Withdrawal of suit with liberty to file fresh suit
- Discretion of trial court
- Non-application of mind
- Suit for partition and separate possession
