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Sambanda Naicker and ors. Vs. Ranganayaki Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2256 of 1953
Judge
Reported inAIR1957Mad207
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(2)
AppellantSambanda Naicker and ors.
RespondentRanganayaki Ammal and anr.
Appellant AdvocateT.S. Kuppuswami Iyer, Adv.
Respondent AdvocateT.R. Srnivasan, Adv.
DispositionPetition dismissed
Cases ReferredIn Bai Mahakore v. Bhika.
Excerpt:
.....that suit would fail and any other ground shown for withdrawal of suit with liberty to file fresh suit such ground should also be more or less same or analogous to formal defect - held, liberal interpretation should be given to rule 1 (b) as that will cause less hardship to plaintiff seeking leave to withdraw suit. - - half of the petitioner, takes the same objection and contends that when it is conceded that there was no formal defect in the plaint by reason of which it could be apprehended that the suit would fail and any other sufficient ground shown to enable the court to grant such permission must be ejusdem generis with the formal defect referred to in order 23, rule 1, sub-clause 2 (a). he has relied upon a series of decisions, namely, aiya gounden v. of 1859 provided..........granting permission to withdraw the suit filed by the plaintiff as a pauper with liberty to file a fresh suit. the order is purported to have been made under order 23, rule 1, civil p. o.2. the plaintiff is a widow and there was an earlier suit brought by her for maintenance against the estate of the joint family, she is the widow of the deceased brother of the first defendant. her husband had predeceased her father-in-law. the suit was o. s. no. 231 of 1945 and there was a compromise decree in that suit. maintenance was agreed to be paid at the rate of 24 kalams of paddy and cash of rs. 60 per year, as the father-in-law was hound to maintain her under a moral obligation,3. the present suit is for maintenance against the defendants filed after the death of her father-in-law for 60 kalams.....
Judgment:
ORDER

Basheer Ahmed Sayeed, J.

1. This civil revision Petition arises out of an order made by the learned District Munsif, Sirkali, granting permission to withdraw the suit filed by the plaintiff as a pauper with liberty to file a fresh suit. The order is purported to have been made under Order 23, Rule 1, Civil P. O.

2. The plaintiff is a widow and there was an earlier suit brought by her for maintenance against the estate of the joint family, she is the widow of the deceased brother of the first defendant. Her husband had predeceased her father-in-law. The suit was O. S. No. 231 of 1945 and there was a compromise decree in that suit. Maintenance was agreed to be paid at the rate of 24 kalams of paddy and cash of Rs. 60 per year, as the father-in-law was hound to maintain her under a moral obligation,

3. The present suit is for maintenance against the defendants filed after the death of her father-in-law for 60 kalams of 'Paddy and cash of Rs. 60 per annum. The suit also comprised a claim for past maintenance from April 1952 to the date of the plaint. After the suit was instituted and the written statement was filed and issues were framed, the plaintiff put in the present application, out of which this revision has arisen, to withdraw the suit with liberty to file a fresh suit under Order 23, Rule 1.

The learned District Munsif in an elaborate order, after considering all the authorities that were placed before him, came to the conclusion that it was a fit case where permission should be granted to the plaintiff to withdraw the suit and institute a fresh suit on the same cause of action, if she so chose. One of the reasons shown tor withdrawing the suit was that after the death of the father-in-law, the plaintiff had become entitled to file a suit for partition of the share to which her husband was entitled to in the joint family estate and, obviously at the time she actually filed the suit, after the expiry of her father-in-law, she was not aware that instead of or in addition to the suit for maintenance she could also claim partition of the estate so far as her husband's interest was concerned.

She claimed this right under the law which extended the right of the widow to her husband's share in the immoveable property of the estate of the joint family including agricultural lands. The amendment to Hindu Women's Right to Property Act extending the right to agricultural tends was made in 1947.

4. The application to withdraw the Present suit with liberty to bring a fresh suit was resisted by the defendants On the ground that Order 23, Rule 1 (2) was not applicable to the circumstances set forth in the application for Permission to withdraw. The learned District Munsif overruled, the objection and granted the permission.

5. Mr. Kuppuswami Iyer, appearing on be. half of the petitioner, takes the same objection and contends that when it is conceded that there was no formal defect in the plaint by reason of which it could be apprehended that the suit would fail and any other sufficient ground shown to enable the Court to grant such permission must be ejusdem generis with the formal defect referred to in Order 23, Rule 1, Sub-clause 2 (a). He has relied upon a series of decisions, namely, Aiya Gounden v. Gopanna Mauradiyar, 27 Mad LJ 480: AIR 1915 Mad 480 (A); Jagadambal v. Sundarammal : AIR1941Mad46 and Varadarejulu Naidu v. Narayanaswami Naldu : AIR1950Mad40 .

In all these decisions the permission to withdraw was asked for and granted at a very later stage, when the parties had entered upon trial of the suit and evidence had been let in. In these decisions three learned Judges of this Court, namely, Justice Oldfield, Justice Seshagiri Aiyar and Justice Horwill, took the view that is now pressed by the learned counsel for the petitioner, namely, that the term 'other sufficient grounds' must be at least analogous to the formal defect contemplated in Order 23, Rule 1, Sub-clause a (a) If not ejusdem generis with the formal defect But in Kannuswami Pillai v. Jagathambai, ILR 41 Mad 701 : A I R 1919 Mad 1071 (D), Justice Sadasiva Aiyar was of the opinion that 'other sufficient grounds' need not be ejusdem generis with the formal defect referred, to in Rule 2 (a) and was of the opinion that a wider interpretation should he given to the terms 'other sufficient grounds.' in order to enable the Court to grant permission to withdraw the suit or part of the suit.

He, however, held on the facts of that case that it must at least be analogous to the formal defect referred to in Sub-clause 2 (a) of Order 23, Rule 1.

6. The old Section 97, Civil P. C. of 1859 provided that

'if the plaintiff, at any time, before the final Judgment, satisfied the Court that there are sufficient grounds tor permitting him to withdrawfrom the suit with liberty to bring a fresh suitin the same matter, it shall be competent to theCourt to grant such permission on such termsas to costs or otherwise as it may deem proper'.

This old provision appears to me to have been much more liberal and gave a wider discretion to the Court to allow a suit to be withdrawn on any grounds that were considered sufficient by the Court, where liberty was asked to bring a fresh suit on the same cause of action. But this old section was amended later on and it took the form in which it is now found. In the amended form a distinction is made between a Plaintiff withdrawing a suit and a plaintiff withdrawing from a suit. Whatever that distinction be, it is not clear what exactly was the intention of the legislature when the amendment was made.

Whether the idea was to liberalise the discretion vested in the Court or to narrow it down, we cannot say at this stage. But, however, the fact remains that the trend of the decisions in this Court, and also in the Allahabad High Court, as could be gathered from the decision in Atdul Ghafoor v. Abdul Rahman : AIR1951All845 , seems to have been to narrow down the scope of the discretion vested in the Court permitting a plaintiff to withdraw from a suit with liberty to file a fresh suit on the same cause of action, This tendency does not appear to me to be in consonance with the real object under lying the amended clause.

Sub-clauses (a) and (b) seem to deal with two different situations, and not with similar or analogous situations. Otherwise, there seems to be no need for having introduced the terms 'other and sufficient' in Sub-clause (b) in contradistinction from the terms contained in Sub-clause (a). Some meaning and significance should be attached to the terms 'other and sufficient' in the context in which they appear. The first ground is stated to be the possibility of a failure of the suit by reason of formal defect. If it was the case that any other ground shown for withdrawal of the suit with liberty to file a fresh suit should also be more or less the same or analogous to the for-mal defect, then the terms 'other' and 'sufficient' lose all meaning and significance in the context.

The clause seems to read and convey sufficient meaning even if it is read without the words 'other and sufficient'. Therefore it will not be doing any violence to the language or to the spirit and object underlying the same, if we were to hold that a wider discretion is sought to be given to the Courts under Sub-clause (b) than under Sub-clause (a). I do not see any justification to restrict the scope of Sub-clause (b). when the Court is satisfied on other and sufficient grounds to give leave to withdraw than those contained in Sub-clause (a).

Mr. Justice Horwill in two decisions referred to above, namely : AIR1941Mad46 and : AIR1950Mad40 , has persistently held that view that the term 'other sufficient grounds' must be ejusdem generis with the grounds under the Sub-clause 2(a) or at any rate they must be analogous to the formal defect mentioned therein.

At the same time he has taken the view that if once lower Court in exercising its discretion has granted permission to the Plaintiff to withdraw from the suit on other and sufficient grounds, the High Court need not interfere in revision against the order of that type, when once it has been a considered order Passed on taking into account all the merits of the case and as well as the authorities placed before the Court I am inclined to agree with this view and it accords with my own reading of the import of Sub-clause (b) of Rule 1,

7. In this case the learned counsel, Mr. T. R, Srinivasan on behalf of the respondent, relied on the (decision in Chidambara Mudali v. Kozhandavelu Mudali, 17 Ind Cas 395 (Mad) (P), a decision in which Justice Sundara Aiyar and Justice Sadasiva Aiyar have agreed that permission could be granted to withdraw-the suit under Order 23, Rule 2, with liberty to file a fresh suit even at a very late stage at the second appeal. This decision has not been dissented from in any of the decisions cited by the learned counsel for the petitioner;

In ILR 41 Mad 701 : AIR 1919 Mad 1071 (D) also the two Judges, namely, Oldfield and Sadasiva Aiyar JJ. stuck to their respective views, one holding that the term 'other end sufficient grounds' should be interpreted as being 'ejusdem generis' with the formal defect and the other holding that it should not be so interpreted. The Bombay view seems to be in accordance with the view taken by justice Sadasiva Aiyar as can be seen from the decision In Bai Mahakore v. Bhika. bai Sankalchand Shah, : AIR1935Bom28 (H).

I am myself inclined to agree with the view that seeks to give a more liberal interpretation to the Sub-clause (to) of Rule 1, as that will have the effect of causing less hardship to the plaintiff seeking leave to withdraw the suit.

8. Apart from this, the question that arises for consideration in this revision is whether the learned District Munsif has exercised his jurisdiction properly and whether there were sufficient grounds for him to grant permission to the plaintiff to withdraw the suit and file a fresh suit on the same cause of action. Considering the fact that at the time when the suit was instituted the plaintiff was not fully aware of her rights which accrued to her on the death of her father-in-law and that she was not well advised in bringing the suit merely for the purpose of enforcing her right to maintenance, it can be contended that in form the suit was not properly conceived and therefore it was defective when it was filed in Court.

A further fact also appears to have been taken into consideration by the learned District Munsir, namely, that the withdrawal of the suit with liberty to file a fresh suit will not in any way, prejudice the rights of the defendants. Mr. Kuppu-swami Aiyar conceded that to withdraw the suit outright there was absolutely no bar and even so, after such withdrawal, to file a fresh suit for partition of the property there could be no bar. But his only objection was to giving liberty to withdraw the present suit and to file a fresh suit on the same cause of action, which would in turn mean a claim for maintenance as well as for partition.

This, he said, Was not competent procedure in view of the interpretation that has been put upon Order 23, Rule 1, Sub-clauses (a) and (b) by the decisions cited by him.

9. I am however of the opinion that in the circumstances of the present case, the order of the learned District Munsif is not, in any way, improper nor can it be put down as an exercise of jurisdiction which is not vested in him; much less can it be said that the Jurisdiction has been wrongly exercised by the learned District Munsif. He has considered all aspects of the case, and all the authorities cited before him in coming to his conclusion.

On the whole, I think taking all the facts that arise in this case into consideration it is in the interest of Justice that permission should be granted to the petitioner to withdraw from the suit with liberty to file a fresh suit in any form in which she might be advised in order to enforce her rights. Therefore this revision petition is dismissed; but in the circumstances Without costs.


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