TMI Blog2007 (4) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... h Nadar, he had purchased the suit properties under sale deed Ex.A1 dated 26.2.1973, the defendants 1 to 3 fraudulently created a conveyance deed in their favour the defendants had earlier instituted O.S. No. 298 of 1973 on the file of the District Munsif Court, Srivaikuntam, the defendants obtained orders of injunction and managed to enter into the suit properties; the defendants have no right whatsoever, the suit 0. S. No. 298 of 1973 was dismissed after contest, in appeal , the first appellate Court decreed the suit in favour of the plaintiffs in the said suit , present plaintiff preferred Second Appeal , No. 8 of 1977, pending the said Second Appeal, said suit was permitted to be withdrawn i.e. suit 0.S. No.298 of 1973 but without liber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself as they have not proved execution of the sale deed by Chelliah Nadar, the plaintiff has no right to institute this suit, the plaintiff is not entitled to the suit property, the plaintiff is not entitled to any income or value of the trees or income from palmyra trees and that the suit is liable to be dismissed. After contest, the trial Court held that the plaintiff in the present suit is entitled to the suit property and the plaintiff is entitled to recover possession, the defendants 1 and 3 are liable to pay ₹ 2,760/- towards past mense profits and the plaintiff is entitled to future mense profits to be ascertained under Order 20 Rule 12 of the Code. The first appellate court held that the defendant Nos. 4 to 5 have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant's claim is barred in view of the orders passed in the earlier suit between the same parties. It is to be noted that the first appellate court had observed that the withdrawal debarred the plaintiffs from filing a subsequent suit but it did not affect the defence of the defendants. Learned counsel for the appellants has referred to several decisions to contend that fresh suit is not barred and Order XXIII Rule 1 (4) has no application to the facts of the cases. There is no appearance on behalf of the respondent in spite of notice. In order to appreciate contention of learned counsel for the appellant, it would be appropriate to quote Order XXIII, Rule 1(4) the same read as follows: 1 (4)Where the plaintiff (a) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch attachment to the benefit of sub-rule(1). The original suit was one for declaration of title and injunction. Undisputedly the withdrawal was permitted but no liberty to file fresh suit was granted. The purpose of incorporating of Order XXIII Rule 1 is to avoid multiplicity of litigation. In the earlier suit the respondent-defendant claimed to be the owner. The provisions contained in Order IX Rule 9 Order XXII Rule 10 relate to different concepts. It is the subject matter which is the relevant aspect. Plaintiff has to prove his case. Order II Rule 2 also is relevant, the same reads as follows: Order II Rule 2 Suit to include the whole claim: (1) Every suit shall include the whole of the claim which the plaintiff is entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question before us is : what is the effect of order passed by the High Court in Second Appeal No.8 of 1977 filed by Thangaraj Nadar, in the first round of litigation. That order is dated 27.7.78. Under that order, the Madras High Court granted leave to withdraw the suit filed by the petitioners herein bearing Suit No.298 of 1973, making it clear that the petitioners herein (plaintiffs in earlier suit) were not given liberty to file a fresh suit. Does it mean that petitioners- defendants were estopped from raising the defence regarding validity of the conveyance in their favour by Chelliah Nadar dated 8.10.71. In the case of (Rani) Kulandai Pandichi and another v. Indran Ramaswami Pandia Thevan (AIR 1928 Madras 416), it has been held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that appeal did not lie. This is a case where the plaintiff withdrew his suit under Sub- rule (1) of Rule 1 of Order XXIII -- he was competent to do that and required nobody's permission since he was the sole plaintiff, the defendant, as we shall presently see being in no sense a plaintiff -- and the so-called dismissal of the suit as withdrawn by the trial Court was not really a dismissal but a mere recording of the fact of withdrawal. It determined none of the matters in controversy in the suit -- there was no claim by the defendant to be determined -- and is not a decree as defined by Section 2 (2) of the Code. It stands on the same footing as a dismissal under Rule 8 of Order IX which, because the word, dismissal implying a dete ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
