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2013 DIGILAW 665 (KER)

Suseelakutty Amma v. Sankunny Pillai

2013-07-31

P.N.RAVINDRAN

body2013
JUDGMENT : P.N. Ravindran, J. The petitioners are the plaintiffs in O.S. No. 198 of 2003 on the file of the Court of the Munsiff of Kottarakara. The respondents are the defendants therein. The suit instituted by the petitioners for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property and from closing down the plaint B schedule pathway was dismissed by the trial court by Ext. P4 judgment delivered on 6.12.2005. Aggrieved thereby, the plaintiffs filed A. S. No. 26 of 2006 in the Court of the Subordinate Judge of Kottarakara. The appeal was later transferred to the Court of the Subordinate Judge of Karunagappally where it was renumbered as A.S. No. 10 of 2012. In that appeal, the petitioners filed I.A. No. 348 of 2012 under O.XXIII R. 1 of the Code of Civil Procedure for permission to withdraw the appeal with liberty to file a fresh suit. What the petitioners really meant was permission to withdraw the suit with liberty to file a fresh suit. The respondents opposed the application by filing Ext.P6 objections. The appellate court considered the rival contentions and dismissed I. A.No. 348 of 2012 by Ext.P7 order passed on 5.12.2012. The said order is under challenge in this Original Petition filed under Article 227 of the Constitution of India. 2. I heard Sri. K.V. Anil Kumar, learned counsel appearing for the petitioners and Sri.B.Mohan Lal, learned counsel appearing for the respondents. I have also gone through the pleadings and the materials on record. The order passed by the court below reads as follows: "This I. A. is filed on the part of the petitioner/Appellant to withdraw the suit with a permission to file a fresh one. Heard both sides and perused records. Admittedly by virtue of Order 23, Rule 1 provides that, if a suit is having formal defect, such one can be withdrawn. A reading of the aforesaid provision would show that after institution of the suit at any time, the plaintiff may abandon his suit or part of claim against defendant or defendants, which denotes that such a right is available when the petitioner remains as plaintiff in the suit. Admittedly appeal, though can be considered as the continuation of the suit, the status of the plaintiff is seen changed to the appellant. Admittedly appeal, though can be considered as the continuation of the suit, the status of the plaintiff is seen changed to the appellant. Provision of C.P.C. never permits to withdraw a suit in the appellate stage with a liberty to file a fresh one for the same cause of action. A reading of the said order would make crystal clear that what is envisaged under said provision that only plaintiff can withdraw the suit and not the appellant can be permitted to withdraw the suit. In this circumstance the prayer of the petitioner to withdraw the suit with a liberty to file a fresh one can't be granted. Hence this I.A. stands dismissed. No cost." A reading of the impugned order discloses that the lower appellate court dismissed the application filed by the plaintiffs/appellants for permission to withdraw the suit with liberty to file a fresh suit on the short ground that an application to withdraw the suit can be filed only by the plaintiff on the original side and not by the plaintiff/appellant on the appellate side. The court below has not however gone into the merits of the application for permission to withdraw the suit. 3. A learned single Judge of this Court has in Amminikutty v. George Abraham, ( 1987 (1) KLT 574 : 1987 ICO 1371 held that an appeal is a continuation of the suit and the appellate court is also competent to grant permission to withdraw the suit. Reliance was placed on the decision of the Privy Council in Ravaneswar v. Baljnath Ram, AIR 1915 PC 24 in support of the said conclusion. The attention of the court below was evidently not invited to the binding decision of this Court in Amminikutty v. George Abraham, 1987 (1) KLT 574 . The order passed by the appellate court cannot, in my opinion, be therefore sustained. I accordingly allow the Original Petition, set aside Ext.P7 order dated 5.12.2012 passed by the Court of the Subordinate Judge of Karunagappally in I. A.No. 348 of 2012 in A.S.No. 10 of 2012, restore the said application to file and direct the court below to dispose of the application afresh on the merits, having regard to the contentions of both sides. Revised orders on I.A.No. 348 of 2012 in A.S.No. 10 of 2012 shall be passed expeditiously and in any event within one month from the date of receipt of a copy of this judgment.