IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 26250 of 2008(Y) -------------------------- PETITIONER: ------------- VARGHESE VARGHESE, S/O VARGHESE, AGED 55 YEARS, RESIDING AT CHEMBANANIKKAL HOUSE, RAMAPURAM KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM. BY ADV. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE RESPONDENTS: ---------------- 1. MATHEW, AGED ABOUT 87 YEARS, RESIDING AT UZHUNNALIL HOUSE, RAMAPURAM KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM. (DIED) 2. JOSE MATHEW, S/O MATHEW, AGED 45 YEARS, RAMAPURAM KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM. 3. DEVASIA JOSE, AGED 50 YEARS, RESIDING AT KAMBOTHUNKAL HOUSE, RAMAPURAM KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM. 4. THRESSIA, W/O. DEVASSIA, AGED ABOUT 85 YEARS RESIDING AT KAMBOTHUNKAL HOUSE, RAMAPURAM KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO.26250 OF 2008 ------------------------------------------ Dated this the 1st day of September, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging the portion of Ext.P3 order directing payment of cost of Rs.3,000/-. Petitioner instituted a suit before Munsiff Court, Pala in 1994. When the suit was ultimately dismissed, petitioner filed A.S.16 of 2005 before Sub Court, Pala. Subsequently in the appeal, petitioner filed an application for permission to withdraw the suit with liberty to institute a fresh suit on the same cause of action, as provided under sub rule 3 of Rule 1 of Order XXIIIof Code of Civil Procedure. Learned Sub Judge, under Ext.P3 order, allowed the application on payment of cost of Rs.3,000/-. 2. The argument of the learned counsel appearing for petitioner is that the cost awarded is excessive and therefore it is to be set aside. Learned counsel submitted that petitioner is financially weak and cannot afford to pay the cost and therefore the order is to be quashed. While considering the quantum of WP(C)26250/08 2 cost awarded by the learned Sub Judge, fact that respondents were compelled to defend the suit before the trial Court for eleven years and were also compelled to resist the appeal for three years cannot be ignored. It is taking into consideration all these facts, learned Sub Judge awarded a cost of Rs.3,000/-. When at the appellate stage, petitioner was granted liberty to institute a fresh suit by withdrawing the suit, which was dismissed by the trail Court, it cannot be said that the cost awarded is excessive. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-