CRP(MD)/624/2025 of Innocent Rakkini Vs Mariya Micheal on 17 September 2026

ORDER

This civil revision petition has been filed challenging the order passed in I.A.No.04 of 2023 in O.S.No.197 of 2016, dated 20/12/2024 on the file of the Principal District Munsif Court, Valliyoor.

2. The petitioner is the plaintiff in O.S No.197 of 2016, which was instituted seeking a declaration and consequential permanent injunction in respect of the suit property. The petitioner filed an application under Order XXIII Rule 1(3) read with Section 151 of the Code of Civil Procedure, 1908, seeking permission to withdraw the suit with liberty to institute a fresh suit on the same cause of action. The said application was dismissed by the learned Trial Court and the present Civil Revision Petition has been filed challenging the said order.

3. The learned counsel appearing for the petitioner states that the suit property measuring an extent of 2 Acres and 49 cents in Survey No. 641, was originally divided under a Partition Deed dated 05/07/1916 between Gnana Michael Nadar and Irudhaya Nadar. Under the said partition, an extent of 1 Acre and 77 cents was allotted to Gnana Michael

Nadar, an extent of 64 cents was allotted to Irudhaya Nadar, and an extent of 8 cents was kept in common for the well. The petitioner traces her claim to the subsequent devolution and transfer of the property, including the Sale Deed dated 13/09/1993 executed in favour of her husband and the Settlement Deed dated 25/08/2014 executed by her daughter in her favour. It is the contention of the petitioner that the extent and particulars of the property were not correctly set out in the original plaint. It is further contended that during the pendency of the suit, the first defendant executed a Settlement Deed in favour of the second defendant, which also requires to be challenged. Therefore, the petitioner sought permission to withdraw the suit with liberty to institute a fresh suit, contending that such permission was necessary to rectify the defects in the original pleadings and to place all the material facts before the Court. The learned Trial Court dismissed the application, taking note of the fact that the written statement had been filed as early as on 18/01/2017 and that the application had been filed nearly seven years after the institution of the suit. The learned Trial Court also observed that the petitioner’s husband was a party to the Partition Deed dated 23/03/1983 and that the application appeared to have been filed with a view to overcoming the bar of limitation. Aggrieved by the said order, the petitioner has preferred the present Civil Revision Petition.

4. The learned counsel appearing for the petitioner submitted that the petitioner seeks to withdraw the suit only to rectify the omissions in the original plaint and to challenge the Settlement Deed subsequently executed by the first defendant in favour of the second defendant. It is contended that unless permission is granted to institute a fresh suit, the petitioner would be seriously prejudiced.

5. In support of his contention, the learned counsel appearing for the petitioner relied upon the following judgments:-

(i) In Rajendran and another Vs. Annasamy Pandian (D), through LRs., reported in 2017-5-L.W.201, wherein, in paragraph 9, it has been held as follows:- “9.Order XXIII Rule 1(3) CPC lays down the following grounds on which a Court may allow withdrawal of a suit. It reads as under: R.1. Withdrawal of suit or abandonment of part of claim.—(3) Where the Court is satisfied.—

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. As per Order XXIII Rule 1(3) CPC, a suit may be withdrawn with permission to bring a fresh suit only when the Court is satisfied that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. The power to allow withdrawal of a suit is discretionary. In the application, the plaintiff must make out a case in terms of Order XXIII Rule 1(3)(a) or (b) CPC and must ask for leave. The Court can allow the application filed under Order XXIII Rule 1(3) CPC for withdrawal of the suit with liberty to bring a fresh suit only if the condition in either of the clauses (a) or (b), that is, existence of a ‘formal defect’ or ‘sufficient grounds’, is satisfied. The principle under Order XXIII Rule 1(3) CPC is founded on public policy to prevent institution of suits again and again on the same cause of action.”

(ii) In M.Sai and another Vs. Shree Dharmaraja Kovil Trust, reported in 2018-3-L.W.156, wherein the Court considered the question relating to withdrawal of a suit with leave to institute a fresh suit on the same cause of action and the requirement of disclosing the earlier proceedings.

(iii) In Sellammal and others Vs. Kandasamy and another, reported in (2021) 4 MLJ 362, wherein, in paragraphs 10 and 11, it has been held as follows:- “10.In the above case, the Hon'ble Supreme Court of India held that, insofar as the prayer for withdrawal of the suit with permission to file a fresh suit, whether in full or in part, is concerned, the plaintiff is always at liberty to do so and the defendant has no right to raise any objection. Insofar as the grant of liberty is concerned, the prayer for withdrawal of the suit with permission to file a fresh suit is governed by Sub-Rule (3) of Rule 1 and, in such event, the Court can consider the same subject to such terms as provided under the provision.

11. As discussed above, though the Trial Court dismissed the petition seeking amendment of the prayer for declaration on the ground of limitation, the petitioners can be permitted to withdraw the suit to file a fresh suit. If the petitioners file a fresh suit, the provision under Order XXIII Rule 2 CPC will come into force to safeguard the interest of the respondent herein. It is relevant to extract Order XXIII Rule 2 CPC as follows:

(2) Limitation Law not affected by first suit: In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. Therefore, the petitioners are liable to satisfy the law of limitation while filing the fresh suit.”

6. Relying upon the above judgments, the learned counsel appearing for the petitioner contended that the impugned order passed by the learned Trial Court is liable to be set aside and the civil revision petition is to be allowed.

7. On the other hand, the learned counsel appearing for the first respondent supported the findings of the learned Trial Court and sought dismissal of the Civil Revision Petition.

8. Heard the learned counsel appearing on either side and perused the materials available on record.

9. The point for consideration is whether the order of the learned Trial Court dismissing the application filed under Order XXIII Rule 1(3) read with Section 151 CPC warrants interference by this Court.

10. It is settled law that a plaintiff cannot claim an unconditional right to withdraw a suit with liberty to institute a fresh suit on the same subject matter. Such permission can be granted only when the requirements of Order XXIII Rule 1(3) CPC are satisfied, namely, where the suit must fail by reason of some formal defect or where there are sufficient grounds for permitting the plaintiff to institute a fresh suit. The Court must also ensure that the withdrawal does not unjustly prejudice the rights accrued to the opposite party.

11. In the present case, the principal ground urged by the petitioner is that the extent and particulars of the suit property were not correctly stated in the original plaint. Such a defect, if established, could ordinarily be addressed by seeking an amendment of the plaint in accordance with law. The existence of an error in describing the extent of the property does not, by itself, justify withdrawal of the entire suit with liberty to institute a fresh suit.

12. The petitioner has also sought permission to withdraw the suit on the ground that the Settlement Deed executed by the first defendant in favour of the second defendant requires to be challenged. However, the petitioner has not furnished sufficient particulars of the said Settlement Deed, including its date and other relevant details, to enable the Court to examine the nature of the proposed challenge and the question of limitation. In the absence of such particulars, the Court cannot conclude that the proposed fresh suit would be maintainable or that sufficient grounds exist for granting the liberty sought.

13. It is also relevant to note that the suit was instituted in the year 2016, whereas the application seeking withdrawal with liberty to institute a fresh suit was filed nearly seven years later. The written statement had been filed on 18/01/2017. The petitioner has not established that the defects complained of are such that the existing suit must fail or that they cannot adequately be addressed in the pending proceedings by adopting the appropriate procedure available in law.

14. The learned Trial Court, upon consideration of the pleadings and the circumstances in which the application was filed, concluded that the application was intended to overcome the bar of limitation. In the absence of sufficient material to demonstrate a formal defect or other sufficient grounds warranting permission under Order XXIII Rule 1(3) CPC, this Court finds no reason to interfere with the said conclusion. Granting liberty to institute a fresh suit without examining the relevant particulars and the question of limitation would also risk prejudicing the rights of the defendants.

15. In view of the foregoing reasons, this Court finds no illegality, irregularity or perversity in the order passed by the learned Trial Court warranting interference in the exercise of revisional jurisdiction.

16. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. 23-09-2026 Index:Yes/No Internet:Yes/No er To,

1. The Principal District Munsif Court, Valliyoor.

2. The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.

R.POORNIMA.,J er CRP(MD)No.624 of 2025 23/09/2026