V. Balasubrahmanyan, J.
1. Krishnammal, the first respondent herein, was the owner of a house property bearing door No. 197 in Lala Chatram compound, North Masi Street, Madurai. Her next door neighbour was a Charitable institution by name Lala Chatram. In 1968 Krishnammal filed a suit against Lala Chatram claiming title to a vacant space of land, which, according to her, formed part of her property, house and ground, bearing Door No. 197. According to Krishnammal, her neighbour Lala Chatram was attempting to interfere with her possession of this portion of the vacant land. She, accordingly, filed a suit against Lala Chatram for declaration that the vacant space belonged to her and for an injunction restraining Lala Chatram from interfering with her rights. In the schedule attached to the plaint setting out a description of the suit vacant plot, Krishnammal gave the Survey Number of the plot as T.S. No. 620. Lala Chatram entered appearance and resisted the suit. Their case was that Krishnammal laid claim to title to the suit plot Which, in fact, was part of the Chatram's own land and was included in a different Survey Number, T.S. No. 629. On these pleadings parties went to trial. The learned District Munsif who tried the suit upheld the defence of Lala Chatram. He based his findings on the Commissioner's report and a plan attached thereto which clearly showed that Krishnammal was laying claim to the suit plot as falling within T.S. No. 620, which, actually, under the Commissioner's plan, was found to fall within the Chatram's land bearing T.S. No. 629. The learned District Munsif, accordingly dismissed Krishnammal's suit for declaration and consequential injunction. However, having regard to the situation of Krishnammal's property, with respect to the adjacent property of the Chatram, the learned District Munsif declared certain easement rights in favour of Krishnammal.
2. Against the dismissal of her suit for the reasons aforesaid, Krishnammal filed an appeal in the Sub-Court, Madurai. The principle ground in the Memorandum of appeal was that the learned District Munsif ought to have recorded a finding that the suit plot fell within T.S. No. 620. At the same time, however, Krishnammal filed an application for amendment of the plaint-schedule describing the suit plot as falling in both T.S. No. 620 and T.S. No. 629, varying the original description of the suit plot as falling in T.S. No. 620 alone. This application for amendment was opposed by Lala Chatram. The learned Subordinate Judge dismissed the application, after hearing the parties. Against that order, Krishnammal filed a revision in this Court. The revision too was dismissed, with the following observation:
The lower appellate Court rejected the application holding that it would change the subject-matter of the suit. In my opinion, the conclusion of the lower appellate Court was correct because it was the case of the respondent (Lala Chatram) that the property was situate exclusively in T.S. No. 629 and belonged to him and therefore the introduction of T.S. No. 629 in addition to T.S. No. 620 will certainly change the subject-matter of the suit itself. Hence the civil revision petition is dismissed.
3. Krishnammal's revision was disposed of by the Court in the manner aforesaid on 7th July, 1977. On 18th February, 1978, Krishnammal filed an application before the Sub-Court for an order granting her permission to withdraw the suit with liberty to constitute a fresh suit in respect of the subject-matter of the suit on the same cause of action. In that petition, the plea of Krishnammal was that the description of the suit plot in the plaint schedule as lying exclusively in T.S. No. 620 was a mistake. She said that it was purely on the misdescription of the suit plot that the learned District Munsif had dismissed her suit. It was, therefore, urged that what was an inadvertent misdescription must be permitted to be rectified by the Court by allowing her to withdraw the suit with liberty to file a fresh suit.
4. This application was stoutly opposed by Lala Chatram. The learned Subordinate Judge, however, overruled the Chatram's objection and passed an order granting leave to Krishnammal to withdraw her suit and file a fresh suit.
5. Lala Chatram has now come before this Court in revision complaining that the learned Subordinate Judge had exercised his jurisdiction in an irregular manner when he granted Krishnammal leave to withdraw the suit and file a fresh suit.
6. I think on the mere narration of events which I have given in the foregoing paragraphs, without more, this revision must be allowed and the order of the learned Subordinate Judge set aside as being not only a bad exercise of discretion, but as being perverse.
7. The Civil Procedure Code, confers a discretion on the Court to grant to a plaintiff in a suit permission to withdraw the suit with liberty to institute a fresh suit in respect of the same subject-matter where the Court is satisfied that the suit must fail by reason of some formal defect or that are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject-matter. The learned Subordinate Judge in this case regarded the dismissal of Krishnammal's suit by the learned District Munsif as having been based on a mere formal defect. The learned Judge also observed that it was a bona fide mistake on Krishnammal's part to have described the suit plot as falling exclusively in T.S. No. 620. The learned Judge further observed that no prejudice would be caused to the defendant Lala Chatram in the event of a fresh suit being filed carrying the correct description and survey number of the suit plot. The learned Judge overruled all the objections to the contrary put forward by the Chatram.
8. In my judgment, the learned Subordinate Judge was palpably in error in thinking that no prejudice would be caused to the Chatram by granting leave to Krishnammal to withdraw her suit. The learned Judge overlooked that the suit had been dismissed by the trial Court, and the title of Lala Chatram had been upheld after full adjudication. The order granting withdrawal of the suit, when an appeal had been filed by Krishnammal against the dismissal of her suit, and during the pendency of that appeal, has the effect of reversing the trial Court's decree in the Chatram's favour without going into the merits of the findings recorded by the trial Court in the Chatram's favour. In these events, to take the stand that the withdrawal of the suit, at this juncture, would spell no prejudice to the Chatram is to be selectively blind to the realities of this litigation.
9. In a recent reported judgment of mine, Charles Samuel v. Board of Trustees, Devaswam Board Office, Suchindram (1978) 91 L.W. 320. I have held that the withdrawal of a suit in such circumstances cannot be regarded as a withdrawal on account of a formal defect. I have also held that it would be a wrong exercise of discretion granted by Order 23, Rule 1 of the Code to grant leave to withdraw the suit in such a situation. There would be absence of prejudice in such cases only if what is asked for is the withdrawal of the appeal, and not the withdrawal of the suit, against the dismissal of which the appeal has been preferred.
10. In a subsequent decision of a Division Bench of this Court in K. Chinna Vaira Thevar v. S. Vaira Thevar : (1982)2MLJ400 , the decision of mine was briefly noticed. The judgment of the Division Bench is notable, however, for the restatement of the law governing the discretion of the Court under Order 23, Rule 1 of the Code. In that case the controversy arose in a suit for declaration of title. The issue before the trial Court was as to the precise correlation between an ancient paimash number and a new survey number touching the identification of the suit property. It was found by the trial Court that the plaintiff could not correlate the suit property to any item in a previous proceeding wherein the property was described with reference to paimash numbers. On that account the suit was dismissed. The plaintiff appealed, but pending disposal of the appeal, asked for permission to withdraw the suit with liberty to file a fresh suit. This permission was granted in the revision which was heard by the Division Bench, the decision of the appellate Court was reversed. The learned Judges, observed that the mere fact that the plaintiff was not able to secure the necessary evidence at the trial stage to prove his case about the correlation between paimash number and survey number was no ground for invoking Order 23, Rule 1 of the Code. In the course of their judgment, the learned Judges referred to a judgment of Yahya Ali, J., Sivagarrdnatha Pillai v. Venkataswami Naicker : (1948)2MLJ367 , in which that learned Judge observed that where after an appreciable portion of the material evidence has been adduced, the plaintiff finds that the evidence was insufficient to establish his case and applies for withdrawal of the suit, it would be contrary to the law as well as the spirit of Order 23, Rule 1 (2) of the Code to permit him to withdraw the suit and institute a fresh suit on the same cause of action. Commenting on this judgment of Yahya Ali, J., the learned Judges of the Division Bench expressed the view that if even at the trial stage the plaintiff could not be permitted to withdraw the suit, on the basis of insufficient evidence adduced by him at the trial, such a permission to withdraw the suit cannot be granted at the appellate stage when the trial Court had considered the entire evidence on merits and held that the evidence adduced by the plaintiff was insufficient to establish his case.
11. My purpose in referring to the Division Bench in detail is just to show in what way the Court below should have dealt with the plaintiff's application for withdrawal of the suit. This is not a case where Krishnammal contends that there is some further evidence to be lot in to establish her case. On the contrary, what she wants to secure is to be wipe the slate clean of her own pleadings and to start a fresh litigation on fresh pleadings. So put, I think the case against the grant of permission to withdraw the suit is a fortiori. There is yet another reason. I have earlier pointed out how, before trying her application under Order 23, Rule 1, Krishnammal had earlier tried an application before the appellate Court for leave to amend the plaint Schedule and argue the appeal on that basis. That application was dismissed by the Sub-Court. The decision was upheld and rightly, so, by this Court in revision. I have quoted verbatim from the order of this Court in revision. In that order this Court clearly held that to allow the amendment application would be to alter the very subject-matter of the suit beyond recognition. It is regrettable that not a word is mentioned in the order presently under revision about these abortive proceedings taken by Krishnammal for getting her plaint amended as a means of sustaining her suit claim. This is particularly the reason why I have characterised the order of the learned Subordinate Judge, as perverse in addition to its being a non-exercise or irregular exercise of judicial discretion under Order 23, Rule 1 of the Code.
12. For the above reasons, his revision is allowed and the order of the learned Subordinate Judge is set aside. The petitioner Chatram is entitled to its costs, in this revision.