Sundrammal vs P.Radhakrishnan on 3 March, 2009

Madras High Court

DATED:03.03.2009

Coram:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.(PD)No.894 of 2006 and

M.P.No.1 of 2006

1. Sundrammal

2. Sarojammal

3. Radhakrishnan ... Petitioners

vs.

P.Radhakrishnan ... Respondent

Civil revision petition filed under Article 227 of the Constitution of India against the order and decreetal order in I.A.No.233 of 2006 in O.S.No.317 of 2005 on the file of the District Munsif, Chengalpattu, dated 07.04.2006.

For Petitioners : No appearance

For Respondent : No appearance

O R D E R

Inveighing the order dated 07.04.2006, passed by the District Munsif, Chengalpattu, in I.A.No.233 of 2006 in O.S.No.317 of 2005, this civil revision petition is focussed.

2. Tersely and briefly, pithily and precisely, the relevant facts which are absolutely necessary and germane for the disposal of this civil revision petition would run thus: The respondent/plaintiff filed the suit O.S.No.317 of 2005 seeking injunction as against the defendants concerning the immovable property described in the schedule of the plaint. The defendants entered appearance and filed the written statement. Subsequently, the plaintiff filed I.A.No.233 of 2006 under Order 23 Rule 1 of CPC seeking permission of the Court to withdraw the suit with liberty to file a fresh suit on the same cause of action on the ground that instead of filing a suit for specific performance with incidental reliefs, the plaintiff's former counsel simply filed the suit for injunction. The lower Court, after hearing both sides allowed the application.

3. Being disconcerted and aggrieved by the order of the lower Court, this revision has been focussed on various grounds, inter alia thus:

Ignoring the significance of Order 2 Rule 2 of CPC and the benefit accrued in favour of the revision petitioners, the lower Court simply allowed the I.A. for withdrawing the suit. In fact by granting such permission to file a fresh suit, the revision petitioners' defence has been prejudiced. Absolutely there is no formal defect being found present in the present suit filed by the plaintiff so as to attract Order 23 Rule 1 of CPC.

4. Despite printing the names concerned, none appeared.

5. A plain poring over and perusal of the typed set of papers including the copy of the order of the lower Court would display and demonstrate, express and portray that the respondent/plaintiff filed the suit for injunction; whereas, during the pendency of the suit, the plaintiff got legal advice that a comprehensive suit for specific performance with incidental reliefs would be the proper remedy for the plaintiff and not a bare suit for injunction. Wherefore only, the plaintiff filed the said I.A. for withdrawing the suit.

6. At this juncture I would call up and recollect the trite proposition of law that a suit for bare injunction already subsisted, would not be an embargo to file a suit based on agreement to sell for specific performance and that Order 2 Rule 2 would not be attracted. Injunction remedy is only for getting achieved certain specific purpose so as to protect the possession of the plaintiff and such like whereas the suit for specific performance is for a different purpose based on a different cause of action. In such a case, in the grounds of revision the attempt to invoke Order 2 Rule 2 of CPC in my considered opinion is neither here nor there.

7. In the grounds of revision, the decision of the Hon'ble Apex Court reported in AIR 1996 SC 3488 [Bakhtawar Singh and another vs. Sada Kaur and another] is relied on. A plain reading of the said precedent would highlight and spotlight the fact that if at all there is any formal defect in the earlier suit, the question of withdrawal would arise. Here the plaintiff has come forward with the categorical case that its former counsel instead of filing a suit for specific performance simply filed the suit for injunction and that according to him is a defect. However in this case the ratiocination adhered to by me supra that the present suit will not be an embargo for the plaintiff to file a fresh suit would water down the contention on the side of the revision petitioners.

8. The other decisions relied on by the revision petitioner are found reported in AIR 1966 MAD 346 [Nadidapatha vs. Pedda Venkataraju] and 2006(1) MLJ 334 [Radha Gopalakrishnan and another vs. M.Rajendran and others]. The observations made by me supra would also be applicable to these precedents also.

9. When it is obvious and axiomatic that suit for specific performance is on a different cause of action and for a different purpose, whether the present suit for injunction is withdrawn or not would not in any way affect the plaintiff's right to file a fresh suit. However, the plaintiff Ex abundanti cautela - out of abundant caution has chosen to withdraw the suit so as to file a comprehensive suit, which in my opinion cannot be taken as one not tenable under law. As such the lower Court au fait with law correctly decided the I.A. warranting no interference by this Court. Hence I could see not merit in this revision petition, accordingly the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

gms

1. The District Munsif,

Chengalpattu