M. Krishnamurthy (Died) vs The Assistant Commissioner

C.R.P.No.3650 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26-10-2026
CORAM
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
Civil Revision Petition No.3650 of 2022
CNR: {HCMA011793592022}
1. M.Krishnamurthy (Died)
S/o.T.R.Mariappapillai
2. K.Sowndharrajan
S/o.Late.M.Krishnamurthy
(P1 - Died, P2 Brought on record as LRs of the
deceased P1, vide order of Court dated
29.09.2026 made in C.M.P.No.27162/2026 in
C.R.P.No.3650/2022 (NAVJ))
..Petitioners
Vs
1. The Assistant Commissioner,
Hindu Religious and Charitable Endowment,
Sathy Road, Erode District.
2. The Thakkar,
Arulmigu Pirattiamman Thiru Koil,
Chennimalai.
3. K.Hemalatha
D/o.Late.M.Krishnamoorthy
(P1 - Died, R3 Brought on record as LRs of the
deceased P1, vide order of Court dated
29.09.2026 made in C.M.P.No.27162/2026 in
C.R.P.No.3650/2022 (NAVJ))
..Respondents
Civil Revision Petition filed under Article 227 of the Constitution of India
against the order dated 30.09.2022 made in I.A.No.1 of 2021 in O.S.No.320 of
2008 on the file of the District Munsif Court, Perundurai.
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C.R.P.No.3650 of 2022
For Petitioners : Mr.N.Manokaran
and Mr.S.Arunprasath
For Respondents : Mrs.D.Chitra Maragatham
Government Advocate [R1]
Mr.S.Surya,
Government Advocate [R2]
*
ORDER
This civil revision petition has been filed under Article 227 of the
Constitution of India against the order dated 30.09.2022 passed in I.A.No.1 of
2021 in O.S.No.320 of 2008 by the District Munsif, Perundurai, wherein the
application filed by the petitioner/plaintiff under Order XXIII Rule (1)(3)(b)
CPC to permit the petitioner to withdraw the suit with liberty to file a fresh suit
on the same cause of action, came to be dismissed by the Court below.
2. Heard learned counsel on either side and carefully perused the
materials available on record. This Court also went through the impugned order.
3. The petitioner is the plaintiff, who filed the suit in O.S.No.320 of 2008
seeking for the relief of permanent injunction restraining the
respondents/defendants from interfering with the peaceful possession and
enjoyment of the suit property. When the suit was filed, the suit property was
described as Survey No.627/2. The petitioner/plaintiff filed I.A.No.1 of 2021 in
O.S.No.320 of 2008 to withdraw the suit with liberty to file a fresh suit on the
ground that the suit property actually lies in R.S.No.627/1 and it has been
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C.R.P.No.3650 of 2022
wrongly mentioned as R.S.No.627/2 in the suit schedule and the attempt made
by the petitioner/plaintiff to amend the plaint in order to make the correction,
came to be rejected, which was also confirmed by the High Court and therefore,
if the petitioner/plaintiff continues to prosecute the suit by showing
R.S.No.627/2, it will not yield any result for the petitioner/plaintiff and
therefore, the application was filed to permit the petitioner/plaintiff to withdraw
the suit with liberty to file a fresh suit on the same cause of action on the ground
that the formal defect disables the petitioner/plaintiff from prosecuting the suit
any further.
4. The second respondent filed a counter and took a stand that the suit
was originally dismissed after a full-fledged trial in the year 2011 and aggrieved
by the same, the petitioner/plaintiff had filed an appeal in A.S.No.17 of 2012 on
the file of Subordinate Court, Perundurai and the said appeal was allowed and
the suit was remanded back to the file of the trial Court. At that stage, an
application came to be filed for amendment to carry out the correction in the re-
survey number and the same was dismissed, which was also confirmed by the
High Court while passing the order in C.R.P.No.229 of 2017 dated 23.02.2021.
Therefore, in order to get over this order, the present application has been filed
which lacks merit. The further stand taken by the respondents is that yet another
suit was filed in O.S.No.262 of 2012 on the file of District Munsif, Perundurai,
in respect of the same property and the same is pending.
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C.R.P.No.3650 of 2022
5. The Court below, after considering the rival contentions, dismissed the
application on the ground that the present application is an abuse of process of
law and it has been filed only to get over the earlier order passed by the Court,
which was confirmed by this Court and that the suit itself has been remanded
only for the limited purpose of adducing additional evidence and absolutely,
there is no justification to allow the application filed by the petitioner/plaintiff.
Aggrieved by the said order, the present revision has been filed before this
Court.
6. The only issue that arises for consideration in the present case is as to
whether the application filed by the petitioner/plaintiff satisfies the requirement
under Order XXIII Rule 1(3) CPC.
7. The sum and substance of the application filed by the petitioner before
the Court below is that the suit property has been wrongly shown as
R.S.No.627/2 instead of R.S.No.627/1 and if the suit is prosecuted by showing
the very same wrong survey number, it will not yield any result for the
petitioner/plaintiff and therefore, this formal defect requires withdrawal of the
present suit with a leave to file a fresh suit on the same cause of action.
8. Learned counsel for petitioner, in order to substantiate his submission,
relied upon the judgment of the Apex Court in V.Rajendran and another v.
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C.R.P.No.3650 of 2022
Annasamy Pandian (dead) and another [ (2017) 5 SCC 63 ] . The relevant
portions in the judgment are extracted hereunder:
“8. The High Court vide the 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 XXIII Rule 1(3) CPC cannot be allowed
to be misused by the parties. The High Court took note of the fact that
the appellants participated in the trial of the 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 of an application under Order VI
Rule 17 CPC for amendment of pleadings and that the 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 the following grounds
on which a Court may allow withdrawal of suit. It reads as under:
“1. Withdrawal of suit or abandonment of part of claim.-
(1)-(2) *
(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 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.” (emphasis supplied)
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
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. The Court can allow the application
filed under Order XXIII Rule 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 cause of
action.
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C.R.P.No.3650 of 2022
10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors. (2000) 5 SCC
458, it has been held that it is the duty of the Court to be satisfied 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 of action. Though, liberty may lie with the plaintiff in a suit
to withdraw the suit at any time after the institution of suit on
establishing the “formal defect” or “sufficient grounds”, such right
cannot be considered to be so absolute as to permit or encourage abuse
of 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 XXIII 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 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.
11. In terms of Order XXIII Rule 1(3) (b) 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 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 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 “formal defect” envisaged under clause (a) of Rule
(1) sub-rule (3), we choose not to elaborate any further on the ground
contemplated under clause (b) that is “sufficient grounds”.
12. 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 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
executed successfully and thus, the said defect will constitute to be 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
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C.R.P.No.3650 of 2022
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)
CPC .”
9. In the above judgment, the Apex Court was dealing with a case with
almost similar facts where the suit was filed by describing the suit property as
Survey No.192/9 whereas after the transfer of patta, the survey number changed
to Survey No.192/14. This defect was sought to be rectified by filing an
application under Order XXIII Rule 1(3) CPC to withdraw the suit and to file a
fresh suit on the same cause of action on the ground that it was a formal defect
within the meaning of the said provision. The Apex Court after dealing with the
scope of Order XXIII Rule 1(3) CPC came to a conclusion that the said defect
will constitute a formal defect and therefore, permitted the appellant therein to
withdraw the suit with a leave to file a fresh suit on the same cause of action.
10. In the case in hand, the suit was already dismissed after a full-fledged
trial and it went on appeal wherein the suit was remanded back to the file of the
trial Court for the purpose of marking additional documents. The question is as
to whether at that stage, the petitioner/plaintiff can be permitted to file an
application of this nature, more particularly, when the earlier application filed
by the petitioner/plaintiff for amendment of plaint for the very same reason,
came to be rejected and was confirmed by this Court.
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C.R.P.No.3650 of 2022
11. In the considered view of this Court, while dealing with an
application under Order XXIII Rule 1 CPC, the stage of the proceedings may
not be very relevant since the Court only has to exercise its discretion in order
to see if any useful purpose will be served in prosecuting the suit any further in
view of the formal defect that stares on the face of the petitioner/plaintiff.
12. In the judgment relied upon by the learned counsel for petitioner in
Rajamanickam v. P.Dhandapani and others [ 2013 (5) CTC 385 ] , this Court
dealt with such a plea made when the case was pending at the stage of second
appeal before this Court. This Court allowed the said plea and the relevant
portions are extracted hereunder:
“33. In the presence of all these defects and also the
complications involved in this Suit, in the fitness of things, permission
for withdrawal could rightly be granted, so that the plaintiff could file a
comprehensive Suit seeking adequate reliefs; whereupon binding
decisions could be rendered.
34. The learned Senior counsel for the Appellant/Plaintiff would
invite the attention of this Court to the fact that anterior to the
amendment of C.P.C . by virtue of Act 104 of 1976, the word 'other'
before 'sufficient grounds' was deleted consciously and meaningfully.
As such, the term 'sufficient grounds' need not be read by applying the
Concept ' ejus generis ' with the term 'formal defect' as found in Order
XXIII, Rule 1(3)(a) of C.P.C.
35. I would like to agree with his submission because Order
XXIII Rule 1(3)(b) is an independent clause. If there is any formal
defect, as per Order XXIII Rule 1(3)(a) then that would be sufficient for
withdrawal. So far clause (b) is concerned, it contemplates 'sufficient
grounds'. The intention of the Legislators is writ large. They do not want
to shackle the hands of the Court in exercising their discretion to grant
permission for withdrawal if there are sufficient grounds. The
Legislators cannot visualize consistencies and discomfitures that a
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C.R.P.No.3650 of 2022
plaintiff might be experiencing in the litigative process. Hence, they left
it to the discretion of the Court to consider the grounds and their
sufficiency and accordingly take a decision to grant permission for
withdrawal or not in appropriate cases.
36. In this case my discussion supra would connote and denote
that there are both formal defects as well as other in the suit, which
would point up and show up that such granting of permission for
withdrawal is absolutely necessary. Accordingly, I am of the view that
the application M.P.1 of 2013 has to be allowed and it is allowed subject
to payment of cost of Rs.15,000/- (rupees fifteen thousand) payable by
the appellant/plaintiff to the respondents 6 to 8/defendants 6 to 8. On
balance, the plaintiff is permitted to withdraw the suit and file a
comprehensive suit on the same cause of action relating to the same
subject-matter relating to this suit.”
13. It is clear from the above that the Court has to apply its mind to see if
sufficient grounds have been made to come to the conclusion that the suit
suffers from formal defect. If that decision is able to be arrived at, the stage of
the proceedings becomes irrelevant since no useful purpose will be served by
proceeding further with the case with that formal defect. In the case in hand, the
petitioner/plaintiff has realized the fact that re-survey number has been wrongly
mentioned as R.S.No.627/2 instead of R.S.No.627/1. R.S.No.627/2 has been
classified as ‘Vandi Nilayam Government Poramboke’ whereas R.S.No.627/1
has been classified as a ‘temple poramboke’. If the petitioner/plaintiff continues
to prosecute the suit for a land, which has been classified as a Government
poramboke, nothing is going to come out of the suit. Thus, there is a formal
defect that prevents the petitioner/plaintiff from further prosecuting the case and
therefore, the length of the proceedings or the dismissal of the earlier civil
revision petition confirming the dismissal of the application filed for
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C.R.P.No.3650 of 2022
N.ANAND VENKATESH, J.
gm
amendment of plaint, will not stand in the way of the Court to exercise its
discretion if the case falls with the parameters prescribed under Order XXIII
Rule 1(3) CPC.
14. Insofar as the suit filed in O.S.No.262 of 2012 is concerned, it is not
necessary for this Court to go into that suit since that suit has been dismissed for
default as early as on 31.07.2025.
15. In the light of the above discussion, this Court is inclined to interfere
with the order passed by the Court below.
Accordingly, the order dated 30.09.2022 passed in I.A.No.1 of 2021 in
O.S.No.320 of 2008 by the District Munsif, Perundurai, is set aside and the civil
revision petition is allowed. No costs.
26-10-2026
Index: Yes
Speaking order
Neutral Citation: Yes
gm
To
The District Munsif Court,
Perundurai.
Civil Revision Petition No.3650 of 2022
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