IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21448 of 2009(O)
1. PUTHUSSERY PARAMBIL FATHIMMU ALIAS
... Petitioner
Vs
1. MAMMI, S/O.THARAKKAL KUNJI MARAKKAR,
... Respondent
2. YOUSAF, S/O.MOIDEEN,
For Petitioner :SRI.JAMSHEED HAFIZ
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :29/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.21448 of 2009 - O
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Dated this the 29th day of July, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:
“i) To issue a direction to the lower court to
dispose of the matter before 5.8.2009 on any day as
pleased by this Honourable Court.
ii) To issue a writ of mandamus or any other
appropriate writ or direction to the lower court to
relist the matter to some other date in the event of
dismissal of Exts.P8 to P11 providing the opportunity
to challenge the same before this Honourable Court.
iii) To issue a writ of mandamus or other writ or
direction to remove the matter from list and to relist
in next consequent month.”
2. Petitioner is the plaintiff in O.S.No.214/2001 on the
file of the Munsiff Court, Tirur. Suit is one for perpetual
prohibitory injunction. On the death of the second defendant in
the suit, petitioner moved an application for impleadment of his
legal heirs. That was allowed by the trial court. But it was
challenged by the other co-defendants in the suit that they had
not been given notice of the impleading petition. This Court after
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setting aside the order directed the court below to examine the
matter afresh and pass appropriate orders. Pursuant thereto, the
learned Munsiff after hearing both sides, dismissed the
application for impeadment of the legal heirs. Now, admittedly,
the case has been included in the special list for trail. At this
stage, petitioner has filed a number of applications, one for
amending the plaint to have an additional relief of declaration of
title, another for impeading the legal heirs of the deceased
second defendant as additional defendants under Order I Rule 10
CPC, yet another for appointment of a commission and another
application for removing the case from the list. After filing such
applications, the petitioner has approached this Court and filed
this petition seeking issue of a direction/orders to the court below
to consider his applications before the trial of the case is
proceeded, invoking the supervisory jurisdiction vested with this
Court under Article 227 of the Constitution of India.
3. I heard the counsel for the petitioner.
4. Having regard to the submissions made and the facts
and circumstances presented with reference to the materials
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tendered with the petition, I find no notice to the respondents is
necessary and it is dispensed with.
5. In a suit filed in the year 2001 that too for a relief of
decree for perpetual injunction alone at the fag end, after the
case was included in the special list for trial, the plaintiff seeks
amendment of the plaint to have additional relief of declaration
on the plea that his title has been disputed by the defendants in
their written statements. Having regard to the time lag, after the
institution of the suit, if not negligence at least lack of diligence
from the part of the plaintiff in moving for amendment till date, I
find this is not a fit case where the supervisory jurisdiction vested
with this Court could be invoked for issuing directions/orders to
the court below as desired by the petitioner/plaintiff. In case the
petitioner finds that in view of the contentions advanced by the
defendants in their written statement and also for the reason of
nonallowing impleadment of legal heirs of the second defendant
in the suit, it may not be possible for him to get a decree and the
plaint as presented now suffers from formal defects in view of the
nonamendment seeking additional relief of declaration, it is open
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to the plaintiff to seek for withdrawal of the suit with liberty to
file a fresh suit. In case any such application is filed, the court
below shall consider it and pass appropriate order taking note
that unless culpable negligence or any other legal impediment
prevent the plaintiff from filing a fresh suit, the normal course is
to grant permission for filing a fresh suit. So far as the
withdrawal of the suit is concerned, no orders from the court is
required, but, only with respect to permission for filing fresh suit
as contemplated under Order XXIII Rule 1 CPC. Of course, if any
such order is passed permitting the plaintiff to file a fresh suit on
withdrawal, the injury likely to be suffered by the defendants also
required to be taken note of, so much so, such permission has to
be accorded only on terms.
The writ petition is closed with the above observation.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-