V. RAJENDRAN AND ANR.versusANNASAMY PANDLAN (D) THR. LRS. KARTHYAYANL NATCHIAR

                              (2017] 2 S.C.R. 508



A                       V. RAJENDRAN AND ANR.
                                       v.
        ANNASAMY PANDlAN (D) THR. LRS. KARTHYAYANl
                       NATCHIAR

B                        (Civil Appeal No. 861 of2017)
                             JANUARY 24, 2017
                 [DIPAK MISRA AND R. BANUMATHI, JJ.]
              Code of Civil Procedure, 1908 - 0. XXJII, r. I (3){a) -
    Withdrawal of suit - On ground of 'formal defect" in suit -
c
    Appellants filed suit for permanent injunction describing suit
    property with a defective survey number - Thereafter, during trial,
    appellant filed application u/O. XXIII, r. J(3) for withdrmval of the
    suit - Propriety of - Held: Defect in the survey number of the suit
    property goes to the very core of the subject matter of the suit and
D   entire proceedings would be fruitless if the decree holder is not
    able to get the decree executed successfi1lly and thus, the said defect
    will constitute to be a formal defect' within the meaning of 0.XXJJJ,
    r. I (3), CFC - Hence, case of appellant would fall u!O.XXIII, r. J(3)(a).
           Costs - Enhancement of - Appellants filed suit for permanent
E   injunction in 2004 - After ten years, an application was filed by
    appellants u!O.XXIII, r. I (3), CFC seeking withdrawal of the suit -
    Held: Application was filed after substantial progress was made in
    the suit - In such circumstances, in instant case, while permitting
    appellant to withdraw the suit, costs of Rs.3000/- awarded by the
    trial court enhanced to Rs.10, 000/-.
F
           Allowing the appeal, the Court
           HELD: 1. Order XXIII Rule 1(3) CPC lays down grounds
    on which a Court may allow withdrawal of suit. As per Order XXIII
    Rule 1(3) CPC, suit may only be withdrawn with permission to
G   bring a fresh suit when the Court is satisfied that the suit must
    fail for 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.
H
                                    508
  V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D)                           509
          THR. LRS. KARTHYAYANI NATCHIAR

The Court can allow the application filed under Order XXIII Rule          A
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". The
principle under Order XXIII Rule 1 (3) CPC is founded on public
policy to prevent institution of suit again and again on the same
                                                                           B
cause of action. [Para 9] [513-D-H; 514-A]
      2. When au application is filed under Order XXIll Rule
1(3) CPC, the Court must be satisfied about the "formal defect"
or "sufficient grounds''. "Formal defect" is a defect of form
prescribed by the Rules of procedure such as, want of notice
under Section 80 CPC, improper valuation of the suit, insufficient         c
court fee, confusion regarding identification of the suit property,
mis-joinder of parties, failure to disclose a cause of action etc.
"Formal defect" must be given a liberal meaning which connotes
various kinds of defects not affecting the merits of the plea raised
by either of the parties. [Para 10] [514-C-E]                              D
      3. In terms of Order XXIII Rule 1(3) (b) CPC where the
court is satisfied that there are sufficient grounds for allowing
the plaintiff to institute a fresh suit, the Court may permit the
plaintiff to withdraw the suit. In interpretation of the word
"sufficient grounds", there are two views: One view is that these          E
grounds in clause (b) must be "ejusdem generis" with those in
clause (a), that is, it must be of the same nature as the ground in
clause (a) that is formal defect or at least analogous to them; and
the other view was that the words "other sufficient grounds" in
clause(b) should be read independent of the words a 'formal
defect' and clause (a). Court bas been given a wider discretion to         F
allow withdrawal from suit in the interest of justice in cases where
such a prayer is not covered by clause (a). (Para 11] (514-F-G)
      4. In the present case, the appellants have filed the suit
describing the suit property as Survey No.192/9 but the
respondents are said to have transferred the patta for the suit            G
property settling as Survey No.192/14. The defect in the survey
number of the suit property goes to the very core of the subject
matter of the suit aud the entire proceedings would be fruitless if
the decree holder is .not able to get the decree executed
successfully and thus, the said defect will constitute to be a             H
510             SUPREME COURT REPORTS                     [2017] 2 S.C.R.


A     "formal defect" within the meaning of Order XXIII Rule 1(3)(a)
      CPC. That apart the respondents are said to have executed an
      Inam Settlement Deed, in favour of their son, mentioning the
      suit property as Survey No.192/14. The case of the appellants
      would fall under clause (a) of Rule 1(3)CPC. [Para 12] [515-A-C)
B           5. In the facts and circumstance of the case, the trial court
      considered the allegation set out in the application as a ground
      for withdrawal. The view taken by the trial court that the suit
      suffered from a formal defect to allow the appellants to withdraw
      the suit with permission to institute a fresh suit, is correct. The
      High Court was not right in interfering with the discretion
c     exercised by the trial court, permitting the appellants to withdraw
      the suit with liberty to file a fresh suit. Based on the order passed
      by the trial court, the appellants have already filed suit before
      District Munsif. The High Court while passing the order does
      not seem to have kept in view the said suit filed by the appellants.
D     In the facts and circumstance of the case, the impugned order
      passed by the High Court cannot be sustained. [Para 13] [515-
      D-E)
             6. The appellants have filed the suit way back in 2004 after
      the witnesses on either side were examined and the application
E     was filed under Order XXIII Rule 1 (3) CPC seeking withdrawal
      of the suit in the year 2014, after substantial progress was made
      in the suit. In such circumstances, costs of Rs.3000/- awarded by
      the District Munsif is to be enhanced. [Para 14] [515-FJ
              K.S. Bhoopathy and Ors. v. Kokila and Ors. (2000) 5
 F            SCC 458: [2000] 3 SCR 1168 - referred to.
                             Case Law Reference
      (2000] 3 SCR 1168               referred to            Para 10
              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 86 I of
      2017.
G
            From the Judgment and Order dated 09.03.2015 of the High Court
      of Madurai Bench of Madras High Court in C.R.P. PD (MD) No. 248
      of2015.
           S. Nanda Kumar, Parivesh Singh, P. Srinivasan, Ram Ohan Singh
H     Narwal, Naresh Kumar, Ad vs. for the Appellants.
  V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D)                                   511
          THR. LRS. KARTHYAYANI NATCHIAR

       The Judgment of the Court was delivered by                                 A
       R.. BANUMATIII, J. I. Leave granted.
       2. This appeal arises out of the impugned order dated 09.03.2015
passed by the High Court of Madras at Madurai Bench allowing C.R.P.
NPD (MD) No. 248of2015, thereby declining the leave to the appellants
to withdraw the suit.                                                              B

       3. Case of appellants-plaintiffs is that originally the suit property
was the ancestral property of Annasamy Pand ian, who is the father of
the respondent-Karthyayani Natchiar herein and the pal/a forthe entire
suit property was issued in the name of Annasamy Pandian and his
relatives (Pangaligal). The said Annasamy Pandian appointed one                    c
Thangaraj as his power agent to deal with his property by a registered
Power of Attorney Deed dated 09.09.1999. Based upon the said Power
of Attorney, the appellants purchased the said suit property from
Thangaraj under four sale deeds i.e. 50 cents each. The appellants being
 husband and wife, fenced the suit property purchased by them and                  D
 possessed and enjoyed the same as a single property. The Tahsildar of
 Kadaladi has passed an order dated 31.03.2003, confirming the appellants'
purchase and possession over the suit property. Further case of the
appellants is that on the application of the respondent's husband, the
Sub-Collector, Paramakudi without conducting proper enquiry, cancelled
the patta in the name of the appellants and transferred the pal/a in the           E
name of the father of the respondent-Karthyayani Natchiar by order
dated 06.08.2003. Alleging that the respondents are trying to interfere
with the possession of the appellants of the suit property, the appellants
have filed the suit as O.S. No.89 of2004 for permanent injunction. In
the said suit, the respondents filed written submission contending that            F
 the Power of Attorney was fraudulently obtained by said Thangaraj as
he has no right to sell the suit property to the appellants.
        4. According to the appellants, after the written statement was
filed and during the trial, they learnt that the respondents while transferring
the paua in respect of the suit property (Survey No.192/9), they have              G
transferred it as Survey No.192114, which the appellants were not aware
of at the time of filing the suit. During the pendency of the suit, the
respondent- Karthyayani Natchiar alongwith her husband-Velladurai is
 said to have clandestinely executed and registered an Inam Settlement
 Deed on 21.092012 in favourof their son Aranmanai Pandian, mentioning
                                                                                   H
512             SUPREME COURT REPORTS                           [2017] 2 S.C.R.


A     the Survey No.192/\ 4: and they are also said to have handed over the
      possession of the suit property to him. Parties have also litigated before
      the Revenue Court regarding transfer of patta.
              5. The trial in the suit commenced; witnesses were examined on
      both the sides. After the suit was posted for judgment, on application
B     filed by the appellants for raising additional issues and for examining
      additional witnesses, the suit stood adjourned. Atthat stage, the appellants
      filed the application for withdrawal of the suit in terms of Order XXlll
      Rule 1 (3) CPC. The District Munsif allowed the application filed by the
      appellants seeking withdrawal of the suit with liberty to file a fresh suit
      and directed the appellants to pay cost ofRs.3,000/- to the respondents.
c     Being aggrieved, the respondents filed revision before the High Court,
      which was allowed and order of the trial court was set aside. The High
      Court held that the appellants have failed to establish either "formal
      defects" or "sufficient grounds" for withdrawal of the suit. Being
      aggrieved, the appellants have preferred this appeal by way of special
D     leave.
             6. The learned counsel appearing for the appellants Mr. Nanda
      Kumar has submitted that the appellants filed the suit in 0.S.No.89 of
      2004 seeking relief of permanent injunction in respect of the suit property
      described as Survey No.192/9, but while transferring the patta, in favour
E     of the respondents, it was transferred as Survey No.192/\ 4, which the
      appellants were not aware ofat the time of filing of the suit. The appellants
      have also alleged that only after the suit was filed, they came to know
      that the respondent and her husband executed a registered lnam
      Settlement Deed on 21.09.2012 in favour ofrespondent's sonAranmanai
      Pandian mentioning the suit property as Survey No.192114. Learned
F     counsel submitted that because of change in the survey number of the
      suit property and also the alleged settlement deed in favour ofAranmanai
      Pandian, a confusion will prevail with regard to the identification of the
      suit property and hence the appellants had to file an application under
      Order XXllI Rule 1 (3) CPC and the trial court was right in allowing the
G     application filed by the appellants to withdraw the suit with liberty to file
      a fresh suit. It was submitted that without proper appreciation of the
      points raised by the appellants, the High Court erred in setting aside the
      order passed by the trial court.
             7. The respondents were served but none appeared for the
H
  V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D)                                   513
 THR. LRS. KARTHYAYANI NATCHIAR [R. BANUMATHI. J.]

respondents. We have heard learned counsel for the appellants and                  A
perused the impugned order and the materials on record.
        8. The High Court vide impugned order held that the defect
mentioned by the appellants in the application seeking withdrawal of
suit, is not a "formal defect" and that the provision of withdrawal of the
suit contemplated under Order XXlll Rule 1(3) CPC cannot be allowed                B
to be misused by the parties. The High Court took note of the fact that
the appellants participated in the trial ofthe suit for about a decade and
when the suit was listed for framing additional issues and for examining
the additional witnesses, the appellants moved abruptly an application
seeking withdrawal of the suit on an inapposite ground which could have
been easily addressed by way ofan application under Order VI Rule 17
                                                                                   c
CPC for amendment of pleadings and thatthe appellants failed to establish
either a "formal defect" or "sufficient grounds" for withdrawal of the
suit.
      9. Order XXIII Rule 1(3) CPC lays down following grounds on
which a Court may allow withdrawal of suit. It reads as under:                     D

       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
                                                                                   E
        (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
           permissio)1 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.                  F
        As per Order XXIII Rule 1(3) CPC, suit may only be withdrawn
with permission to bring a fresh suit when the Court is satisfied that the
suit must fail for reason of some formal defect or that there are other
sufficient grounds for allowing the plaintiff to institute a fresh suit. The
powerto allow withdrawal of a suit is discretionary. In the application,           G
the plaintiff must make out a case in terms of Order XXlll Rule 1 (3) (a)
or (b) CPC and must ask for leave. The Court can allow the application
filed under Order XXIll Rule 1 (3) CPC for withdrawal of the suit with
liberty to bring a fresh suit only ifthe condition in either of the clauses
(a) or (b) that is, existence of a "formal defect" or "sufficient grounds".
                                                                                   H
514             SUPREME COURT REPORTS                             [2017] 2 S.C.R.



A     The principle under Order XXIII Rule 1 (3) CPC is founded on public
      policy to prevent institution of suit again and again on the same cause of
      action.
              10. In K.S. B/10op11tliv am/ Ors. vs. Koki/11 and Ors. (2000) 5
      SCC 458, it has been held that it is the duty of the Court to be satisfied
B     about the existence of "formal defect" or "sufficient grounds" before
      granting permission to withdraw the suit with liberty to file a fresh suit
      under the same cause ofaction. ·Though, liberty may lie with the plaintiff
      in a suitto withdraw the suit at any time after the institution of suit on
      establishing the "fonnal defect" or "sufficient grounds", such right cannot
      be considered to be so absolute as to pennit or encourage abuse of
c     process of Court. The fact that the plaintiff is entitled to abandon or
      withdraw the suit or part of the claim by itself, is no licence to the plaintiff
      to claim or to do so to the detriment of legitimate right of the defendant.
      When an application is filed under Order XXlll Rule I (3) CPC, the
      Court must be satisfied about the "fonnal defect" or "sufficient grounds".
D     "Formal defect" is a defect of form prescribed by the Rules of procedure
      such as, want of notice under Section 80 CPC, improper valuation of the
      suit, insufficient court fee, confusion regarding identification of the suit
      property, mis-joinder of parties, failure to disclose a cause of action etc.
      "Formal defect" must be given a liberal meaning which connotes various
      kinds of defects not affecting the merits of the plea raised by either of
E     the parties.
            11. In tenns of Order XXIII Rule I (3) (b) where the court is
    satisfied that there are sufficient grounds for allowing the plaintiff to
    institute a fresh suit, the Court may pennit the plaintiff to withdraw the
    suit. In interpretation of the word "sufficient grounds", there are two
F views: 6 One view is that these grounds in clause (b) must be "ejusdem
    generis" with those in clause (a), that is, it must be of the same nature
    as the ground in clause (a) that is formal defect or at least analogous to
    them; and the other view was that the words "other sufficient grounds"
    in clause(b) should be read independent of the words a 'fonnal defect'
G   and  clause (a). Court has been given a wider discretion to allow
    withdrawal from suit in the interest of justice in cases where such a
    prayer is not covered by clause (a). Since in the present case, we are
  . only concerned with "fonnal defect" envisaged under clause (a) of Rule
    (I) sub-rule (3), we choose not to elaborate any further on the ground
    contemplated under clause (b) that is "sufficient grounds".
H
  V. RAJENDRAN AND ANR. v. ANNASAMY PANDIAN (D)                                    515
 THR. LRS. KARTHYAYANI NATCHIAR [R. BANUMATHI, J.]

       12. In the present case, the appellants have filed the suit describing      A
the suit property as Survey No.192/9 but the respondents are said to
have transferred the patta for the suit property settling as Survey No.192/
14. The defect in the survey number of the suit property goes to the
very core of the subject matter of the suit and the entire proceedings
would be fruitless if the decree holder is not able to get the decree
                                                                                    B
executed successfully and thus, the said defect wilt constitute to be a
"format defect" within the meaning of Order XXIII Rule 1(3)(a) CPC.
That apart the respondents are said to have executed an Inam Settlement
Deed on 21.09.2012, in favour of their son Aranmanai Pandian,
mentioning the suit property as Survey No.192/14. We are convinced
that the case of the appellants would fall under clause (a) of Rule 1(3)            c
CPC.
         13. In the facts and circumstance of the case, the trial court
considered the allegation set out in the application as a ground for
withdrawal. The view taken by the trial court that the suit suffered
from a formal defect to allow the appellants to withdraw the suit with              D
permission to institute a fresh suit, is correct. The High Court, in our
view, was not right i!1 interfering with the discretion exercised by the
trial court, permitting the appellants to withdraw the suit with liberty to
file a fresh suit. Based on the order passed by the trial court, the appellants
have already filed suit before District Munsif and the same is numbered
as O.S. No.11/2015. The High Court while passing the order on                       E
09.03.2015 does not seem to have kept in view the said suit filed by the
appellants. In the facts and circumstance of the case, the impugned order
passed by the High Court cannot be sustained.
       14. The appellants have filed the suit bearing 0.S.No.89 of2004
way back in 2004 after the witnesses on either side were examined and               F
the application l.A.No.424 of2014 was filed under Order XXlll Rule 1
(3) CPC seeking withdrawal of the suit in the year 2014, after substantial
progress was made in the suit. In such circumstances, in our view, costs
of Rs.3000/- awarded by the District Munsif is to be enhanced.
        15. We, accordingly, set aside the impugned order of the High               G
Court and restore the order of the trial court with modification to the
effect that the cost imposed on the appellants is enhanced from Rs.3,000/
- to Rs. l 0,000/- The appeal is allowed. No costs.


Ankit Gyan                                                       Appeal allowed.    H