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P. Krishnaswami Pillai Vs. Doraisami Ammal and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in36Ind.Cas.1003
AppellantP. Krishnaswami Pillai
RespondentDoraisami Ammal and anr.
Cases Referred and Gopi Lal v. Naggu Lal
Excerpt:
presidency small cause courts act (xv of 1882), section 33 - full bench whether court of appeal--with, drawal of suit jurisdiction to order--new claim addition of, to plaint in existing suit liberty for. - .....of the suit (2) the permission to withdraw can only be given to enable the plaintiff to bring a fresh suit and not to add the claim to a previously instituted suit.3. on the first point lodd govindass v. rukmani bhai 21 ind. cas. 302 : 14 k.l.t. 310 : i.l.r. 529, decided by miller and sankaran nair jj., is authority for the position that the full bench exercising jurisdiction under section 38 of the presidency small cause courts act is not a court of appeal and there is no need therefore to decide the question as to the power of a court of appeal to allow a withdrawal of the suit on which there is a conflict of authority.4. on the other point i see no reason to doubt the competency of the court to pass the order it did. the permission is to withdraw the suit and if that permission is.....
Judgment:

Srinivasa Aiyangar, J.

1. In this case the Full Bench of the Small Cause Court Madras gave permission to the plaintiff who had obtained a decree in a trial before a single Judge to withdraw the suit to enable him to add his claim to a suit previously instituted by him in the District Munsif's Court Poonamallee to avoid the bar of Order II, Rule 2 of the Code of Civil Procedure. The objection to the maintainability of the suit under this particular provision of law appears to have been taken before the Full Bench though a plea of is pendens was raised before the Trial Judge.

2. The defendant applies in revision to this Court to discharge the order on two grounds (1) That the Full Bench was exercising appellate jurisdiction and was not competent to allow the withdrawal of the suit (2) The permission to withdraw can only be given to enable the plaintiff to bring a fresh suit and not to add the claim to a previously instituted suit.

3. On the first point Lodd Govindass v. Rukmani Bhai 21 Ind. Cas. 302 : 14 K.L.T. 310 : I.L.R. 529, decided by Miller and Sankaran Nair JJ., is authority for the position that the Full Bench exercising jurisdiction under Section 38 of the Presidency Small Cause Courts Act is not a Court of Appeal and there is no need therefore to decide the question as to the power of a Court of Appeal to allow a withdrawal of the suit on which there is a conflict of authority.

4. On the other point I see no reason to doubt the competency of the Court to pass the order it did. The permission is to withdraw the suit and if that permission is obtained the plaintiff is in the same position as if he had not filed the suit [see Abdul Aziz Molla v. Ebrahim Molla 31 C. 965.; Hare Nath Das v. Syed Hossain Ali 10 C.W.N. 8 : 2 C.L.J. 480 and Gopi Lal v. Naggu Lal 10 Ind. Cas. 6 : 15 C.W.N. 993 : 14 C.L.J. 105 and when he seeks to add the claim by way of amendment he may not improperly be said to file a fresh suit for it. Any informality in the matter is now of no consequence as the plaintiff is said to have withdrawn the Poonamallee suit also with leave evidently with a view to bring a fresh suit for both the claims together. In these circumstances I see no reason to interfere and dismiss the petition with costs.


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