1. This matter has been posted before us on an order of reference made by Sethuraman. J. as he felt that there was a conflict between the decision of Balasubramanyam J. in S. Charles Samuel (died) v. Board of Trustees, Suchindram (1978) 91 MLW 320 and that of Varadarajan J as the then was in N. Lakshmanan Nadar v. Board of Trustees, Sucheendram (Order dt 10-12-195 in C.M.P. No. 13471 of 1975 in S.A. 144 of 1972).
2. Before dealing with the point in respect of which a conflict is said to have arisen, it is necessary to set out briefly the facts of this case. The respondent herein filed a suit for declaration of his title to the suit for declaration of his title t the suit for declaration of his title to the suit property comprised in S.No.379/2 Velampatti village and for an injunction restraining the petitioner-defendant form interfering with his possession and enjoyment of the same. The plaintiff's case was that by means of a registered sale deed dated 24-6-1953, he purchased form one Seeni Thevar the suit property, which was paimash No.26, subsequently correlated during the survey as S.No.379/2. The suit was resisted by the defendant on the ground that the suit property comprised in S.No.379/2 correspondent to old paimash No.s69 (p) and 35 (p), that these paimash numbers belonged to his forefathers and that they were allotted to him in a partition between him and his brothers. Thus, the main and subsantial controversy before the trial Court was whether S.No.379/2 in respect of which declaration of title was sought for by the plaintiff corresponded to the old paimash No.26, as alleged by the defendant. The trial Court, has after analysing the evidence, dismissed the respondent -plaintiff's suit on the main ground that he has not established that the suit S.No.379/2 corresponded to old paimash No.26. The respondent-plaintiff has preferred an appeal A..S.No.6 of 1979, before the Court of the Subordinate Judge Madurai.
3. During the pendency of the appeal, he has filed an application I.A.602 of 1979, under O. 23, R. 1 (3), C.P.C. for permission to withdraw his suit with liberty to file a fresh suit on the same cause of action. In the affidavit filed in support of that application , he stated that steps were taken by him to summon the correlation register from the Assistant Settlement Officer, Madurai, for the purpose of establishing the correlation between the suit S.No.379/2 and the paimash No.26, that the correlation register has not, however, been produced on the ground that it was filed in another case pending before the High Court, that hence he was not in a position to prove the correlation at the trial stage that unless he was able to prove the correlation he could not also succeed in the appeal and that therefore he may be permitted to withdraw the suit, with liberty to file a fresh suit on the same cause of action, after the receipt of the correlation register from the High Court by the Assistant Settlement Officer, Madurai.
4. The said application was opposed by the petitioner-defendant on the ground that it cannot be maintained under O. 23, R 1 (3) of the Code as the suit has not failed by reason of some formal defect and that as the suit has been dismissed on merits, it is not open to the plaintiff to seek the permission of the court for withdrawing the suit with liberty to file a fresh suit on the same cause of action.
5. The lower court, however, allowed the application and permitted the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action giving the following reason -
'Thus as adverted above, the petitioner (the respondent in this civil revision petition) has stated that in spite of his best efforts he could not get the correlation resister to substantiate his case and therefore if and when he gets the same he would file a fresh suit on the same cause of action after withdrawing the suit. Therefore I find that there is sufficient reason for granting permission to the petitioner to withdraw the suit in O.S. 70 of 1977 on the file a fresh suit on the same cause of action.'
The said order of the lower court has been challenged in this revision petition by the defendant.
6. When the revision petition came up for admission before Sethuraman J, he felt that on the question involved in the case there are tow conflicting decisions and that for resolving the conflict, the matter has to be place before a Bench.. That is how the matter has come before us.
7. Admittedly in this case , the dismissal of the suit was not, because of any formal defect, but it was due to the fact that the respondent-plaintiff was not able to establish his case by producing the correlation register, which is a necessary piece of evidence to prove his case. The question is, whether the inability of the plaintiff to adduce proper and necessary evidence before the court to prove his case can be taken to be a sufficient ground for allowing him to withdraw the suit with liberty to file a fresh suit on the same cause of action at a later stage, as and when he is able to secure the required evidence to prove his case.
8. Order 23, R. 1 (3) of the Civil P.C. is as follows :-
'1 (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 form 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'.
9. Since the suit in this case has not failed by reason of any formal defect, clause 8 (a) of R. 1 (3) cannot come into play, and, therefore, it has to be seen whether the respondent herein can seek the aid of clause (b) of R. 1 (3). The question is, whether the non -availability of relevant evidence at the stage of trial or at the stage of appeal is sufficient ground for allowing the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action and in respect of the same subject matter.
10. Construing the provision in O. 23, R. 1 (3) (a) of the Code, Varadarajan J. as he then was, in N. Lakshmanan Nadar v. Board of Trustee, Suchindaram, (Order dt. 10-12-1975 in C.M.P. 13471 of 1975, in S. A. 1444 of 1972) has taken the view that since the suit in that case has been dismissed for want of notice under Section 34 of the Tamil Nadu Act 30 of 1959, the suit should be taken to have failed because of formal defect, and that once the suit has failed because of formal defect, the second appellate Court can grant permission to the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action after giving the requisite notice.
11. Balasubrahmanyan J. in Charles Samul S. (died) v. Board of Revenue, Suchindara, (1978) 91 MLW 320 while dealing with a similar application for withdrawal of the suit with liberty to file a fresh suit at the stage of second appeal, held that even in a case where a suit is likely to fail or has in fact failed because of a formal defect, the court has still discretion to refuse leave, having regard to the circumstances of the case. Before Balasubrahmanyan J. the aforesaid judgment of Varadarajan J. as he then was, was referred to in support of the contention that in all cases where a suit is likely to fail due to a formal defect, the court can grant leave. Balasubrahmanyan J. observed that even if the suit were to fail due to a formal defect, it is not the law that the court must, as a matter of course and in every case, grant leave to the plaintiff to withdraw his suit, that under O. 23, R. 1 (2) (corresponding to present R. 1 (3)), the grant of leave to withdraw a suit is always a matter for the discretion of the court, and that whether a case falls under clause (a) or clause (b) of that rule, the court has discretion to allow or not to allow the withdrawal of the suit with liberty to file a fresh suit on the same cause of action. In the case before Balasubrahmanyan J. the suit filed by the plaintiff had failed as it was not preceded by a service of notice under S. 34 of the Tamil Nadu Act 30 of 1959, as was the case before Varadarajan J. While Varadarajan J. held that the non-issue of a notice prior to the suit was a formal defect leave to withdraw the suit is to be granted, Balasubrahmanyan J. has held that the non-issue of a notice was not a formal defect and even if it was so the court can refuse to exercise its discretion to grant leave to the plaintiff to withdraw the suit with liberty to file a fresh suit, on the same cause of action.
12. Though there is an apparent conflict between the two views-one holding that the non-issue of a statutory notice prior to suit is a formal defect and the other holding that the non-issue of such notice is not a formal defect-it is not necessary for the purpose of this case to resolve that conflict. Here the suit has been dismissed on merits, namely, on the ground that the suit property S. No. 379/2 corresponded to paimash No. 26 admittedly owned by him. Further, the decisions referred to above dealt with the provisions contained in O. 23, R. 1 (3) (a) of the Code. But we are now concerned in this case with the scope of O. 23, R. 1 (3) (b) of the Code. Thus the only question that arises for consideration in this case is, whether the failure of the suit on merits or the inability of the plaintiff to prove his case by adducing necessary evidence can be taken ass a `sufficient ground' for the grant of leave to withdraw the suit with liberty to file a fresh suit under O. 23, R. 1 (3) (b) of the Code.
13. After a due consideration of the matter, we are of the view, that the failure or inability of the plaintiff to secure necessary evidence to support his case will not be a ground as contemplated in the said rule. The expression `sufficient grounds' occurring in the aforesaid rule will not take in dismissal of a suit on the ground that the plaintiff has not established his case. If it is otherwise, in all cases where a suit or appeal is dismissed on merits, the plaintiff or appellant, as the case may be, may come forward with an application under the said rule to have the suit withdrawn, with liberty to file a fresh suit later on, on the same cause of action. If such a thing is permitted, there will be no end to any litigation. Therefore the legislature would not have contemplated, `dismissal of a suit on merits' as being a sufficient ground for permitting the plaintiff to withdraw the suit with liberty to file a fresh suit. The failure of the plaintiff to prove his case is no ground for allowing him to withdraw the suit under R. 1 (3) (a) of O. 23. The object of the rule is not to enable the plaintiff after he has failed to establish his case by adducing requisite evidence to have a further opportunity to file a fresh suit to reagitate the matter so as to prejudice the other side.
14. The view which we have expressed above is in accordance with the view taken in the following decisions. In Eleavarthi Nadipatha v. Elavarthi P. Venkataraju, : AIR1966Mad346 , also a suit for declaration and injunction was filed by the plaintiff alleging that he got his title to the suit property under the compromise decree in a partition suit and that he was in exclusive possession of the same. The defendant registered the plaintiff's claim. The trial Court found that the plaintiff could not correlate the suit property to any item in the prior compromise decree and dismissed the suit. At the appellate stage, the Subordinate Judge granted permission to the plaintiff to withdraw the appeal and the suit with liberty to file a fresh suit. On revision to the High Court against the order of the appellate Court, Natesan J. held that as the suit had not failed by reason of any technical or formal defect, but dismissed on the merits of the case, Order 23, R. 1 of the Civil P. C. could not be applied. The learned Judge also observed that appellate Courts should be slow and cautious to exercise the powers under O. 23, R. 1, C.P.C. and permit a defeated plaintiff to withdraw the suit with liberty to file a fresh suit so as to enable him to reagitate the matter once again, and that where defect, if any, could be cured by an amendment of the plaint the court should not ordinarily permit the withdrawal of a suit with liberty to institute a fresh suit.
15. In Sivagaminatha Pillai v. Venkitaswami Naicker, : (1948)2MLJ367 Yahya Ali J. dealing with the scope of O. 23 R. 1 (2), corresponding to present R. 1 (3), held that where after an appreciable portion of the material evidence has been adduced, the plaintiff finds that the evidence is insufficient to establish the case propounded by him in the plaint and applies for withdrawal of the suit, it will be contrary to the letter as well as the spirit of sub-rule (2) of O. 23, R. 1, C.P.C. to permit the plaintiff to institute a fresh suit on the same cause of action.
16. The case before us is a fortiori one, as the entire evidence in the case has been considered by the trial Court and it has been found by the trial Court that sufficient evidence has not been adduced to establish the plaintiff's case that the suit property was originally comprised in paimash No. 26. If, according to Yahya Ali J. even at the trial stage the plaintiff cannot be permitted to withdraw the suit, when he finds that the evidence adduced by the plaintiff is insufficient to establish the case propounded by him, we do not see how he can be permitted to withdraw the suit at the appellate stage, after the trial Court has considered the entire evidence on merits and held that the evidence adduced is insufficient to establish the plaintiff's case.
17. In Venkata v. Nimmakayala AIR 1949 Mad 441. Panchapakesa Ayyar J. has dealt with a case where the plaintiff's suit failed on the ground that the relevant sketch has not been proved by the plaintiff to show that the suit property was a public rastha on ground. There a suit was filed for a declaration that certain rastha was a public rastha and after the trial Court dismissed the suit on the ground that a proper sketch showing the disputed rastha had not been produced by the plaintiff, at the stage of appeal, the plaintiff prayed for leave to withdraw the suit with liberty to file a fresh suit and the Appellate Court granted leave. Panchapakesa Ayyar J. held that the Appellate Court had acted without jurisdiction and with material irregularity in allowing the withdrawal of the suit at such a late stage. The following observations of the learned Judge in that case are pertinent :
'Any Court allowing a party to withdraw from a suit with liberty to file a fresh suit at such a late stage as this, after arguments also have been addressed in appeal, is bound to give satisfactory reasons failing within O. 23, R. 1, C.P.C. The lower Appellate Court has undoubtedly failed to do so. It is not clear what it meant by saying that the suit was defective for want of a proper sketch showing the disputed rastha and the situation of the various lands which appeared in the evidence. There were two sketches before it, namely, the plan filed by the plaintiff along with the plaint and the plan filed by the defendants Ex. D-1. If it wanted a more detailed and accurate sketch than either of these, it was within its powers to direct the parties to get a Commissioner appointed to draw a correct sketch with full details, or to suggest a local inspection by itself to clear up all the doubts it had.'
18. On the facts of the present case it cannot be said that the plaintiff was not in a position to produce the necessary evidence before the trial Court. Even if the plaintiff was not able to get at the original correlation register, he could have obtained relevant extracts therefrom and produced the same as secondary evidence. There are also other modes of proving the fact of correlation and one is by examining a surveyor connected with the department of survey to find out the corresponding paimash number for the suit S. No. 379/2. It is not possible therefore to say that the plaintiff was not in a position to establish his case at all before the trial court. If the attempts of the plaintiff to have the suit withdrawn, with liberty to file a fresh suit is only to have an opportunity to establish the correlation, he could have asked for such an adjournment before the trial Court for that purpose or before the Appellate Court itself, without withdrawing the suit and filing a fresh suit for the same purpose. Even at the appellate stage, he could have asked for the appointment of a surveyor as Commissioner to correlate paimash No. 26 to the present survey number and to locate the same on ground or he could have sought an adjournment of the appeal so as to enable him to get the original correlation register or produce extracts from the original register for the purpose of establishing his case at the stage of the appeal. The mere fact that the plaintiff was not able to secure the necessary evidence at the trial stage to prove his case is no ground for invoking O. 23, R. 1 (3) of the Civil P. C.
19. In this view of the matter, we hold that the order of the Court below permitting the respondent herein to withdraw the suit with liberty to file a fresh suit, cannot legally be sustained. Hence the order of the court below is set aside and the civil revision petition is allowed. The court below is directed to dispose of the appeal on merits, after giving sufficient opportunity to the respondent-plaintiff to establish his case by securing the production of the original correlation register or extracts therefrom or by seeking the appointment of a surveyor as Commissioner to correlate the paimash No. 26 with the survey number with reference to survey and settlement registers that are available with the department, or by producing such other document or documents which the plaintiff wants to produce at the appellate stage to establish the necessary correlation. There will be no order as to costs.