IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 65 of 2009(G)
1. SUPRABHA, D/O.NALINI, AGED 66 YEARS,
... Petitioner
Vs
1. SALIM S.RAJAN, S/O. SOMARAJAN,
... Respondent
For Petitioner :SRI.S.VASUDEVAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :02/01/2009
O R D E R
K.P. Balachandran, J.
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W.P.(C)No.65 of 2009 G
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JUDGMENT
Heard counsel for the petitioner. In the nature
of the order that I propose to pass in this writ
petition, it is unnecessary to issue notice to the
respondent.
2. The suit O.S.No.443/05 was filed by the
petitioner for a decree of permanent prohibitory
injunction as is submitted before me by the counsel
for the petitioner. Petitioner moved I.A.No.5070/08
in the said suit under Order XXIII Rule 1(3) CPC to
withdraw the suit with permission to institute a
fresh suit for declaration of title and possession
of the petitioner/plaintiff over the scheduled
property, as according to him, the defects in the
plaint could not be cured by making an amendment
application. The court below, vide order impugned,
namely Exhibit P3 order dated 11.10.2008, granted
leave to withdraw the suit, but without liberty to
file fresh suit on the same cause of action. It is
WPC 65/09 2
aggrieved by the said order that the petitioner/
plaintiff has preferred this writ petition.
3. When a petition is filed seeking for leave
to withdraw the suit with permission to institute a
fresh suit on the same cause of action, it is for
the court to grant permission as prayed for if
grounds exist, to allow such prayer or otherwise to
dismiss the application and not to pass an order
allowing the petition partly whereby, the
plaintiff, who withdraws the suit, will be debarred
from filing a fresh suit on the same cause of
action. In the instant case, the court below has
not granted permission to file fresh suit, but, at
the same time, has allowed the application partly
permitting withdrawal of the suit. The order is
not legal and is prejudicial to the petitioner/
plaintiff and requires to be set aside.
4. In the result, I set aside Exhibit P3
impugned order dated 11.10.2008 passed by the court
below on I.A.No.5070/08 in O.S.No.443/05 and remit
WPC 65/09 3
back I.A.No.5070/08 to the court below for disposal
afresh according to law.
The writ petition is, thus, disposed of.
Petitioner is directed to produce a copy of this
judgment before the Munsiff with notice to the
counsel for the respondent/defendant in the court
below as this writ petition is being disposed of
without notice to the respondent/defendant.
2nd January, 2009 (K.P.Balachandran, Judge)
tkv