P.R. Shivakumar, J.@mdashThe plaintiffs in the original suit are the appellants in the Second Appeal. The suit was filed for bare injunction based on the plea that all the suit properties were the properties allotted to one Krishnamurthy, the brother of the first respondent, under a registered partition deed dated 20.04.1978 and that part of the suit properties had been conveyed to the first appellant/first plaintiff under the sale deed dated 30.05.2008 and the second appellant/second plaintiff had got a general power of attorney from the legal heirs of the said Krishnamurthy, as the said Krishnamurthy is no more. Based on the sale deed dated 30.05.2008 and general power of attorney dated 29.05.2008, the appellants/plaintiffs claimed to be in possession of the suit properties and pleaded for the relief of permanent injunction against the first defendant who is none other than the brother of Krishnamurthy and the defendants 2 to 4 who are the sons of the first defendant, on the premise that they were making attempts to trespass into the suit properties. The suit was resisted by the defendants contending that no deed of partition between the first defendant and his brother Krishnamurthy, as pleaded by the appellants/plaintiffs ever came into existence. The further plea of the respondents/defendants was that the document referred to by the appellants/plaintiffs as partition deed was only a sham and nominal deed created by the first respondent/first defendant for the purpose of securing a job to his brother Krishnamurthy in the Sugar Mills. It was also contended that all the suit properties were in possession and enjoyment of the respondents/defendants and they continued to enjoy the same. Based on the said averments, they had pleaded for the dismissal of the suit. The respondents/defendants had also taken a plea that the sale deed and the general power of attorney relied on by the appellants/plaintiffs could not be true and valid, since according to them, Kannan son of the deceased Krishnamurthy was not possessing sound disposing state of mind for several years. The further plea of defence taken by the respondents/defendants was that the suit in respect of portions of the suit property, which had not been purchased by the appellants and portions regarding which the second appellant was claiming to be in possession by virtue of the deed of power of attorney executed by the legal heirs of Krishnamurthy and the very framing of the suit without showing him as representing his principals, was not proper and on that ground also, the maintainability of the suit could be negatived.
2. The learned trial Judge after trial dismissed the suit. Besides other findings, the learned trial Judge, in order to non suit the plaintiffs, accepted the plea of the respondents/defendants that no partition took place under the registered partition deed dated 20.04.1978 and that only if the appellants/plaintiffs were able to establish their title in respect of the property, the court could decide whether the plaintiffs had right over the entire property or not. Based on the said reasoning alone the learned trial Judge chose to hold that the appellants/plaintiffs had not proved their possession, for negativing the relief of injunction sought for.
3. On appeal the learned first Appellate Judge, concurred with the said findings and dismissed the appeal. Now the appellants/plaintiffs have brought this second appeal before this court. It transpires items a, b & c of the plaint schedule properties were claimed to be purchased under the sale deed dated 30.05,2008 and during the pendency of the suit the remaining items namely, "d" and "e" were also purchased by the appellants/plaintiffs. Though the appellants/plaintiffs could pursue the remedy for permanent injunction based on their alleged possession pursuant to the sale deed dated 30.05.2008 and the deed of power of Attorney dated 29.05.2008, they can also plead the subsequent conveyance of items "d" and "e" also in their favour. The technical flaw regarding the maintainability of the suit since the second appellant had not been described to be representing his principals under the above said deed of power of Attorney and since the courts below have also accepted the plea of the respondents/defendants that no partition took place under the partition deed dated 20.04.1978 and that unless the title of the appellant/plaintiff is established it would be difficult for them to prove their possession as the reasons for non-suiting the appellants herein/plaintiffs, they have now filed M.P. No. 2 of 2012 under Order 23 Rule 1 of CPC seeking the leave of the Court to withdraw the suit with liberty to institute a comprehensive suit for the establishment of their title to the suit properties and for necessary consequential reliefs. The respondents have filed their counter raising objection for the grant of such leave contending that the appellants/plaintiffs have not made out a case that there is any technical defect on account of which alone the appellants/plaintiffs are bound to fail.
4. The arguments advanced by the learned counsel Mr. K.A. Ravindran on behalf of the appellants and by the learned counsel Mr. T. Dhanyakumar on behalf of the respondents were heard. The affidavit filed in support of the petition M.P. No. 2 of 2012 and the counter affidavit filed therein, grounds of Second Appeal and copies of other documents produced in the form of typeset of papers were also taken into consideration.
5. The narration of facts leading to the filing of the second appeal and circumstances under which M.P. No. 2 of 2012 came to be filed, will show that the present M.P. has been filed since the appellants have been advised that though they have a good case on merit they are bound to fail on a technical ground of not seeking to establish their title to the suit properties. The said apprehension of the appellant seems to be reasonable. The suit had been filed for a bare injunction. The maintainability of the suit had been questioned on a technical ground of not showing the second appellant/second plaintiff as the power agent of his principals. In addition, the respondents/defendants had also taken a plea that the registered partition deed relied on by the appellants was not given effect to and no such partition ever took place. The said contention was also accepted by the courts below, eventhough the same would not have been absolutely necessary to decide the question of grant of relief of permanent injunction which might be based on possession, in the absence of establishment of a better title by the respondents/defendants. The courts below have also expressed their mind that unless and until the appellants/plaintiffs establish their title to the suit property, they have to fail on their plea for injunction. The same would show that the courts below were of the view that the present case is a fit case in which the appellants herein/plaintiffs ought to have filed the suit for declaration to establish their title and consequential injunction rather than seeking bare injunction.
6. Of Course, it cannot be said that a suit for bare injunction based on possession and alleged title is not maintainable. On the other hand what the Apex Court has held in the case of
7. As pointed out supra, a plea of technical defect in the plaint has also been taken by the respondents/defendants. Even assuming that there may not be any technical detect in strict sense, which would result in the dismissal of the suit, this is a fit case which can be fitted into clause (b) of Rule 3 under Order 23 of Code of Civil Procedure. For better appreciation Rule 3 alone, is re-produced herein:
(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.
Sub-rule (a) permits the court to grant leave to the plaintiff who withdraws the suit to institute a fresh suit in respect of the same subject matter of the suit or part of the claim, on the ground that the suit is bound to fail by reason of formal defect. But that is not the sole ground on which such permission to withdraw with liberty to file a fresh suit can be granted. Where there are sufficient grounds to allow the plaintiff to institute a fresh suit for the same subject matter of the suit or part of the claim then sub-clause (b) enunciates the power of court to accord permission. In this case, since this court is of the view that the case involves complicated issues of title which cannot be conveniently decided in the suit for bare injunction, it will constitute a sufficient ground for allowing the plaintiff to withdraw the present suit with liberty to file a comprehensive suit on the same subject matter of the suit.
For the fore-going reasons, this court comes to the conclusion that the objections raised in the counter affidavit of the respondents do not have substance in them. This court also holds that the appellants have made out a clear case for the grant of permission under Rule 3, to withdraw the suit with liberty to file a fresh suit in respect of the same subject matter. Accordingly. M.P. No. 2 of 2012 is allowed and M.P. No. 1 of 2012 is closed. Resultantly, the decree passed by the trial court dismissing the O.S. No. 387 of 2008 on 05.01.2011, which was confirmed by the Appellate Court in its judgment dated 22.03.2012 made in A.S. No. 11 of 2011 is set aside. While empowering the Court to grant such permission under Rule 3. it provides that the opposite party namely the respondents/defendants can claim that they should be compensated with cost. In case of grant of such permission at a later stage of the suit or during the appeal or in the second Appellate Court, the normal rule is that the defendants should be compensated with cost, unless there is special reasons for deviating from the same. When questioned about the amount to be fixed as a reasonable cost to be awarded to the respondents/defendants, the learned counsel appearing on both sides agree that a sum of Rs. 10,000/- shall be reasonable. Hence, this Court deems it appropriate to direct the appellants who are permitted to withdraw the suit to pay a sum of Rs. 10,000/- as cost to the respondents/defendants. The appellants herein/plaintiffs are permitted to withdraw the suit with liberty to file a fresh suit, which shall be a comprehensive one for declaration of title and other consequential reliefs. The Second Appeal shall stand disposed of, accordingly. The appellants shall pay Rs. 10,000/- as cost to the respondents.
