Wrong Survey Number Described Suit Land As Government Poramboke; Madras HC Lets Plaintiff Withdraw And Refile

The plaintiff brought O.S. No. 320 of 2008 seeking a permanent injunction over property described in the plaint as R.S. No. 627/2.

He later sought to withdraw the suit with liberty to file a fresh suit, contending that the property was actually in R.S. No. 627/1 and that the survey number had been wrongly stated.

His earlier application to amend the plaint was dismissed, and that dismissal was confirmed by the High Court.

The trial court dismissed the withdrawal application, viewing it as an attempt to overcome the earlier order.

The plaintiff challenged that decision under Article 227 of the Constitution.

Order XXIII Rule 1(3) CPC permits a court, in its discretion, to allow withdrawal of a suit with liberty to institute a fresh suit where the suit must fail because of a formal defect or where sufficient grounds exist; the court must be satisfied that the statutory conditions are met.

In V. Rajendran v. Annasamy Pandian, (2017) 5 SCC 63, the Supreme Court held that a defect in the survey number identifying the suit property may be a formal defect where it would render the proceedings fruitless, and that “formal defect” is to be construed liberally.

The court also referred to K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458, on the court’s duty to assess the existence of a formal defect or sufficient grounds and to prevent abuse of process, and to Rajamanickam v. P. Dhandapani, 2013 (5) CTC 385, in support of the court’s discretion to permit withdrawal where justified.

The court found that the suit property had been described as R.S. No. 627/2 instead of R.S. No. 627/1.

Since R.S. No. 627/2 was classified as Government poramboke, while R.S. No. 627/1 was classified as temple poramboke, continuing the suit under the stated survey number would serve no useful purpose.

The defect therefore went to the identification of the subject matter and prevented effective prosecution of the suit, bringing it within the meaning of a formal defect under Order XXIII Rule 1(3) CPC.

The court held that the stage of the proceedings was not decisive once the defect was established; nor did the earlier refusal to amend the plaint bar the court from considering whether withdrawal was justified.

It set aside the District Munsif’s order dated 30 September 2022 dismissing I.A. No. 1 of 2021 and allowed the civil revision petition, with no order as to costs.