Madras High Court
CRP/2589/2025 of PARAMESWARI V Vs ANGAMMAL (DIED), 1.SUBRAMANIAM on 15 October 2026
CRP No. 2589 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15-10-2026
CORAM
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
CRP No. 2589 of 2025
CNR:{HCMA011343552025}
AND
CMP NO. 14717 OF 2025
Parameswari V
W/o.Vellaiyappan
..Petitioner(s)
Vs
Angammal (died),
1. Subramaniam
S/o.Late Muthusamy
2. Pappammal
W/o.Late Kandasamy
3. Jothi Venkatachalam
S/o.Late Kandasamy
4. Selvi
W/o.Subramanian
5. Gobi
S/o.Subramanian
..Respondent(s)
Civil Revision Petition filed under Article 227 of the Constitution of India praying to set aside the fair and decretal order dated 09-04-2025 made in IA.No.8 of 2025 in OS.No.210 of 2019, on the file of the learned First Additional District Court, Namakkal.
For Petitioner(s):
Mr.K.Magesh for
CRP No. 2589 of 2025
N.Manoharan
For Respondent(s):
Mr.T.L.Thirumalaisamy for
R1 to R5
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Order
This Civil Revision petition has been filed under Article 227 of the Constitution of India against the fair and decretal order passed in IA.No.8 of 2025 in OS.No.210 of 2019 dated 09.04.2025 whereby the application filed by the petitioner / plaintiff under Order XXIII Rule 1(3) of CPC, seeking leave to withdraw the suit and to file a fresh suit on the same cause of action, came to be dismissed by the Court below.
2. Heard both sides and carefully perused the materials available on record as well as the order passed by the Court below.
3. The petitioner is the plaintiff, who filed the suit in OS No.210 of 2019 seeking for the relief of partition and for allotment of 3/12th share in the suit property. The suit reached the stage of trial and PW1 to PW3 were examined on the side of the plaintiff. DW1 was examined on the side of the defendants and the case was at the stage of cross examination of DW1. At that stage, IA No.8 of 2025 was filed by the petitioners / plaintiffs seeking leave of the Court to withdraw the suit and to file a fresh suit on the same cause of
CRP No. 2589 of 2025
action. The said application was dismissed by the Court below. Aggrieved by the same, the present Civil Revision Petition has been filed before this Court.
4. The application was filed mainly on the ground that certain properties had not been included in the suit schedule and that necessary parties had also not been included in the suit. The same became apparent after the examination of the witnesses. Therefore, the plaintiff sought to withdraw the present suit with a leave to file a fresh suit on the same cause of action.
5. The Court below has dismissed the application on the ground that no particulars were furnished on the properties that were left out and the parties who had not been impleaded in the proceedings. Therefore, the request made by the petitioner / plaintiff did not satisfy the requirements under Order XXIII Rule 1(3) of CPC.
6. The respondents /defendants opposed the application on the ground that during cross examination, certain answers were elicited from PW1 to PW3 and that by permitting the petitioner to withdraw the suit with a leave to file a fresh suit on the same cause of action, the plaintiff was trying to get over the answers elicited during cross examination.
7. The answers that have been elicited in the cross examination pertains to certain properties not being included in the suit schedule and certain
CRP No. 2589 of 2025
necessary parties were not added as defendants in the suit. If the petitioner / plaintiff proceeds with the case inspite of this fatal deficiency, the suit will be obliviously dismissed. Therefore, the plaintiff wants to file a fresh suit by including all the properties and by including all the necessary parties to the suit.
8. Even if the plaintiff does not seek for leave to file a fresh suit and withdraws this suit, the subsequent suit will not be barred by res judicata. More particularly, in a suit for partition since it is a recurring cause of action. Useful reference can be made to the judgement of this Court in [V.Ponramu Vs. B.Usharani and three others] reported in 2009 1 MLJ 126 and [Balamani and another Vs. S.Balasundaram] reported in 2009 4 MLJ 218. It has also been held that wherer the suit for partition is dismissed for default, subsequent suit is not barred by resjudicata.
9. To attract the principles of res judicata in a suit for partition, the substantial issue regarding apportionment of property must have been heard and decided finally in the earlier suit. Reference can be made to the judgement of this Court in [Anjila and others Vs. Chellammal and others] reported in 2017 1 MLJ 457.
10. In a suit for partition, the principle of res judicata will arise only after preliminary decree is passed and it becomes final between the parties and thereafter, the parties will be estopped from raising any new contention at the
CRP No. 2589 of 2025
stage of final decree, which was not raised in the suit. Useful reference can be made to the judgement of this Court in [K.Vijayalakshmi Vs.K.Sashikanth] reported in 2015 1 CTC 73 and [T.Ravi and another Vs. B.Chinna Narasimha and others] reported in 2017 7 SCC 342.
11. In the light of the above discussion, the Court below need not have dismissed the application filed by the petitioner / plaintiff since even if the suit had been withdrawn without seeking for leave, it would not have barred the petitioner / plaintiff to file a fresh suit for partition by including all the properties and by adding all the necessary parties.
12. In the result, the order passed by the Court below is hereby set- aside and this Civil Revision Petition stands allowed. No costs. Consequently, the connected miscellaneous petition is closed. 15-10-2026 Index: Yes Speaking Neutral Citation: Yes RKA To The I Additional District Court, Namakkal.
CRP No. 2589 of 2025
N.ANAND VENKATESH J. RKA CRP No. 2589 of 2025 AND CMP NO. 14717 OF 2025 15-10-2026