IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1536 of 2008(G)
1. N. RAMAKRISHNA PILLAI,
... Petitioner
2. M. RAMACHANDRAN PILLAI,
Vs
1. B. VASUDEVAN PILLAI,
... Respondent
2. SOMARAJAN NAIR, S/O.RAMAKRISHNA PILLAI,
3. G. KUNJUKRISHNA PILLAI,
4. J. SANTHOSH,
5. B. CHANDRACHOODAN PILLAI,
6. G.B. VASUDEVAN PILLAI NAIR,
For Petitioner :SRI.C.RAJENDRAN
For Respondent :SRI. K.SHAJ
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :10/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.1536 of 2008 - G
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Dated this the 10th day of September, 2009
J U D G M E N T
Petitioners, two in number, had applied for leave to institute
a suit under Section 92 of the Code of Civil Procedure with
respect to a temple situate in Kollam District. On the leave
application so moved by the petitioners the court below directed
to publish notice in a newspaper. Petitioners complied with that
direction. Later, noticing that there was some defect in the draft
plaint, petitioners applied for permission to withdraw the petition
with liberty to file a fresh suit. Learned District Judge passed
Ext.P4 order directing the petitioners for publication in any
newspaper for such withdrawal. Correctness of that order is
challenged in the writ petition.
2. I heard the learned counsel for the petitioner.
3. It is submitted by the learned counsel as leave has not
been granted by the court for instituting the suit for the sole
reason previously a publication was made in the leave
application as directed by the court below, no further notice is
necessary for withdrawal of the leave application. I find some
W.P.(C).No.1536 of 2009 – G
2
force in the submission made by the counsel. Applicability of
Order I Rule 8(A) of the Code of Civil Procedure which demand
further publication would arise for consideration only when
permission had been granted to the persons to sue in a
representative capacity. In the present case no such permission
had been granted, but, they had been directed to give notice of
publication only on the leave application to sue in the
representative capacity. Such publication had been effected on
the application does not postulate that permission had been
granted to institute a suit in a representative capacity. Such
being the position, I find to withdraw the leave application further
publication of notice is not necessary. Setting aside Ext.P4 order
I direct the court below to consider the request of the petitioners
for withdrawal of the leave application in accordance with law.
Writ petition is disposed of as above.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-