C.R.P.No.4642 of 2017 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.06.2025 CORAM : THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN C.R.P.No.4642 of 2017 & CMP.No.21897 of 2017 1.Ananthammal 2.Lakshmanan 3.Radhakrishnan 4.Paramasivam .. Petitioners Versus Chakrapani (died) Seetarama Naidu (died) 1.Subbulakshmi Krishnamurthi (died) 2.Chandra 3.Gowri 4.Andal 5.Sumathi 6.Manikandan 7.Veera 8.Vignesh .. Respondents (Respondents 6 to 8 declared as major vide order of this Court dated 24.06.2025 vide CMP.No.23924 of 2024) Prayer: Civil Revision Petitions filed under Article 227 of the Constitution of India to set aside the fair order and decretal order of the learned Principal District Munsif, Cuddalore dated 13.09.2017 dismissing I.A.No.660 of 2017 in O.S.No.606 of 2004. For Petitioners : Ms.Pooja for Mr.D.Baskar 1/7 https://www.mhc.tn.gov.in/judis C.R.P.No.4642 of 2017 For Respondent 1 : No appearance For Respondents 2 to 5 : Mr.Santhosh Kumar for Mr.N.Suresh ORDER This civil revision petition challenges the order passed by the learned Principal District Munsif at Cuddalore in I.A.No.660 of 2017 in O.S.No.606 of 2004 dated 13.09.2017. 2. O.S.No.606 of 2004 was filed for the following reliefs: “m) jhth brhj;Jf;fs; thjpfSf;F ghj;jpakhdbjd;W tpsk;g[if ghpfhuk; tH';Fk;gof;Fk;. M) nkw;go gpujpthjpfnsh. mth;fSila Ml;fnsh. Vb$z;Lfnsh ve;j tifapYk;. ve;j fhyj;jpYk; jhth brhj;Jf;fspy; thjpfspd; mikjpahd mDgtj;ija[k;. RthjPdj;ija[k; ,ila{W bra;ahky; ,Uf;Fk; bghUl;L epue;ju cWj;Jf;fl;lis ghpfhuk; tH';Fk;gof;Fk;. ,) ,e;j jhthtpd; bryt[ thjpfSf;F gpujpthjpfshy; fpilf;Fk;gof;Fk;.” 3. On being served with the summons, the third defendant filed a detailed written statement, which was adopted by the second defendant. The first defendant filed a detailed written statement, which was adopted by the defendants 4, 5, 7 & 8. 2/7 https://www.mhc.tn.gov.in/judis C.R.P.No.4642 of 2017 4. Parties went to trial and evidence was also concluded. At that stage, the plaintiffs filed an application in I.A.No.660 of 2017 invoking Order XXIII Rule 1(3) of the Code of Civil Procedure. The plaintiffs pleaded that though the suit is for declaration of title and for injunction, they had failed to plead that they are the legal heirs of the deceased Krishnamurthi, despite the execution of “WILL” dated 23.12.2002. In addition, they pleaded that the Revenue Department granted a patta in favour of the defendants under Ex.B1. The same has not been challenged and that the Government had not been impleaded by them, as a party to the suit. Hence, the plaintiff prayed that the Court may permit them to withdraw the suit and file a fresh suit on the same cause of action. 5. This application was resisted by the defendants, who pointed out, on an earlier occasion, an application for amendment had been filed and that application had been dismissed and the revision preferred therefrom also met the same fate. They pointed out that PW1 had pleaded that they do not have title to the property and that, the plea of “formal defect” is a new theory developed by the plaintiffs. 6. The learned Principal District Munsif, after considering the affidavit and counter, came to a conclusion that the plea for withdrawal with liberty to file a fresh suit on the same cause of action is untenable. 3/7 https://www.mhc.tn.gov.in/judis C.R.P.No.4642 of 2017 Therefore, he dismissed the said application. Challenging the same the present revision. 7. I heard Ms.Pooja representing Mr.D.Baskar for the petitioners and Mr.Santhosh Kumar representing Mr.N.Suresh for the respondents 2 to 5. 8. On 13.06.2025, I had adjourned the matter to enable Mr.D.Basker to convince me that the points pleaded in the affidavit constitute a “formal defect” entitling the petitioner to withdraw the suit and file a fresh suit on the same cause of action. 9. Today Mr.D.Baskar is not available and Ms.Pooja represents Mr.D.Baskar. 10. Ms.Pooja reiterated the contentions placed in the affidavit. 11. Mr.Santhosh Kumar brought to the notice of this Court that the suit itself had been withdrawn on 04.01.2018. Therefore, his plea is that the revision has become infructuous. 4/7 https://www.mhc.tn.gov.in/judis C.R.P.No.4642 of 2017 12. Insofar as the submission of Mr.Santhosh Kumar is concerned, if I am convinced that there is a “formal defect” and set aside the order which is impugned, then, the withdrawal would not stand in the way of the parties to get the suit restored. Therefore, the said objection is rejected. 13. On the merits of the case, two points have been urged for withdrawal of the suit. The first one being non-impleading of the Government and the second one being that the plaintiffs have not pleaded that they are the legal heirs of the deceased Krishnamurthi through whom they claim title. 14. Formal defect is one which should go to the root of the matter. An example that can be cited is giving a wrong survey number and filing a suit on that basis. See, V.Rajendran V. Annasamy Pandian, (2017) 5 SCC 63. Non-impleading of the parties cannot be considered as a “formal defect”. See, Maina Devi v. Ved Parkash, PLR (1988) 94 P&H 495. In fact, non-impleading can also not be raised as a ground in the appeal. If the Government is not impleaded as a party, the decree passed by the Court would not be binding on the Government. It does not mean that in every case where patta is granted in favour of the private parties, the Government should be roped in as defendant. 5/7 https://www.mhc.tn.gov.in/judis C.R.P.No.4642 of 2017 15. Insofar as the second point that has been urged by Mr.Pooja that the plaintiffs have only projected a “WILL” and not projected that they are legal heirs of the deceased, Krishnamurthi is concerned, I do not think this point should stand a moment's scrutiny. This is for a simple reason even that the “WILL” does not make or unmake a legal heir. By the very birth for the plaintiffs to the testator, they become his legal heirs. No law requires that the father should write “WILL” for his successors to be declared as legal heirs. 16. Both the points not being formal defects, I am not inclined to interfere with the impugned order. The civil revision petition is dismissed with a cost of Rs.10,000/-. Consequently, the connected miscellaneous petition is closed. 24.06.2025 nl Index : yes/no Speaking order/Non-speaking order Neutral Citation : yes/no To The Principal District Munsif, Cuddalore 6/7 https://www.mhc.tn.gov.in/judis C.R.P.No.4642 of 2017 V.LAKSHMINARAYANAN, J. nl C.R.P.No.4642 of 2017 24.06.2025 7/7 https://www.mhc.tn.gov.in/judis