KANDAPAZHA NADAR AND ORS. versus CHITRAGANIAMMAL AND ORS.

Citation: [2007] 5 S.C.R. 174 · Decided: 16-04-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed
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Judgment (excerpt)

A 
KANDAPAZHA NADAR AND ORS. 
v. 
I" -
CHITRAGANIAMMAL AND ORS. 
APRIL 16, 2007 
B 
[DR. ARJJIT PASA YAT AND S.H. KAPADIA, JJ.] 
Code of Civil Procedure, 1908-0. 2 r. 2, 0. 9, r.9.0. 22 r. IO and 0. 
23 r. I (4)-Withdrawal of suit-Without liberty to file a fresh suit-Effect 
c of-On the defence of the party withdrawing, in a subsequent suit-Held: 
Such withdrawal, without any adjudication, does not constitute a decree, 
hence cannot debar the defence in subsequent suit. 
Plaintiff-predecessor of the respondents herein filed a suit against the 
defendants-appellants, claiming to be owner of the property in question, which 
D he had purchased from 'C'. According to the plaintiff the defendants had 
entered the possession of the property on the strength of a fraudulent 
conveyance deed. The earlier suit in respect of the property in question filed 
by the defendants had been withdrawn by them at the stage of second appeal, 
without permission to file a fresh suit. 
·t 
... 
E 
Trial Court held the plaintiff entitled to the suit property. First Appellate 
Court inter alia held that withdrawal of the earlier suit by the defendants 
barred the plaintiff from filing a subsequent suit, but it did not affect the 
defence of the defendants. High Court held that that by application of general 
• 
principles of res-judicata, defence of the defendants was barred in view of 
F 
withdrawal of their earlier suit. 
In appeal to this Court, appellant-defendants contended that fresh suit 
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was not barred and Order 23 Rule 1 ( 4) had no application to the facts of the 
cases. 
G 
Allowing the appeal, the Court 
'· 
HELD: When the court allows the suit to be withdrawn without liberty 
to file a fresh suit, without any adjudication, such order allowing withdrawal 
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cannot constitute a decree and it cannot debar the petitioners herein from 
taking the defence in the second round of litigation. If the plaintiff withdraws 
" 
H 
174 
KANDAPAZHA NADAR v. CHITRAGANIAMMAL[PASA YAT,J.l 
175 
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the suit, the order of the court allowing such withdrawal does not constitute A 
a decree under Section 2(2) of CPC. That in any event, will not preclude the 
petitioners herein (defendants in second round) from raising the plea that 
the sale deed executed in favour of the plaintiff was not true and valid. 
[Para 19) [181-C-E) 
(Rani) Kulandai Pandichi and Anr. v. Jndran Ramaswami Pandia B 
Thevan AIR (1928) Madras 416; Saraswati Bala Samanta and Ors. v. 
Surabala Dassi and Ors., AIR [1957) Calcutta 57; Devassi v. Anthoni, AIR 
(1969) Kerala 78 and Nathji and Anr. v. Languria and Anr., AIR (1925) 
Allahabad 272, referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5107 of2000. c 
From the Judgment and Order dated 30.04.1999 of the High Court of 
Judicature at Madras in S.A. No. 230of1987. 
V. Prabhakar, Ramjee Prasad, V. Subramani and Revathy Raghavan for D 
the Appellants. 
r 
The Judgment of the Court was delivered by 
DR. ARIJIT PASA YAT, J. 1. Challenge in this Appeal is to the judgment 
rendered by a learned Single Judge of the Madras High Court allowing the E 
second appeal filed by the respondents under Section 100 of the Code of Civil 
Procedure, I 908 (in short the 'Code'). Respondents are the legal representatives 
of the original plaintiff. 
2. According to the plaintiff, the suit properties originally belonged to 
one Chelliah Nadar, he had purchased the suit properties under sale deed F 
Ex.A I dated 26.2.1973, the defendants I 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 O.S. No. 298 of I 973 was 
dismissed after contest, in appeal , the first appellate Court decreed the suit G 
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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 O.S. No.298 of 1973 but without liberty to 
file a fresh suit on the same cause of action, the defendants have no right 
in the suit property and the defendants who have no right are in enjoyment H 
176 
SUPREME COURT REPORTS 
[2007) 5 S.C.R. 
A of the suit properties since 11.6.1973. 
r-
3. It was the further case of the plaintiffs that the defendants have cut 
and carried away the Odai tr
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