IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 WP(C).No. 15304 of 2007(V) ------------------------------------------ AS.62/2005 of SUB COURT,KATTAPPANA IN O.S.234/03 AND O.S.66/2005 OF MUNSIFF COURT,PEERMADE) .................... PETITIONER: ------------------- M.S.THANKAPPAN, S/O.SANTHANAM, MANTHARAM HOUSE, THEKKADY KARA, KUMILY VILLAGE. BY ADV. SRI.ASOK M.CHERIAN SRI.K.R.VINOD RESPONDENTS: ------------------------- 1. SULOCHANAKUMARI, W/O.C.SEBASTIAN, SAUPARNIKAYIL HOUSE, THEKKADY KARA, KUMILY VILLAGE. 2. P.D.RAMAKRISHNAPILLAI, W/O.N. DAMODARAPILLAI, USHASSU HOUSE, THEKKADY KARA, KUMILY VILLAGE. ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.RAJAN VELLOTH FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.A.S.SABU FOR R1 SRI.A.G.GIRISH KUMAR FOR R1 SRI.V.SANJEEV FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15304/2007 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMON JUDGMENT DTD. 30/06/2005 IN O.S.NO.234/03 AND O.S.66/05 OF THE MUNSIFF'S COURT, PEERMADE. EXT.P2: COPY OF THE COMMON ORDER DTD. 29/11/2007 OF THE SUB COURT, KATTAPPANA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 15304 OF 2007 ------------------------------------------ Dated this the 1st day of July, 2008 JUDGMENT Petitioner is the defendant in O.S. 66 of 2005, who is also the second defendant in O.S. 234 of 2003 on the file of Munsiff Court, Peermade. Both the suits were for injunction and tried jointly. First respondent is the plaintiff in both the suits. After trial, both suits were dismissed. In O.S. 66 of 2005 petitioner sought a decree restraining first respondent/plaintiff from trespassing into the plaint schedule property. A decree was granted in his favour. First respondent challenged the dismissal of the suit including the counter claim granted in favour of petitioner in 66 of 2005 before Sub Court, Kattappana in A.S. 61 of 2005 and 62 of 2005. When the appeals were pending, first respondent filed I.A. 1249 of 2006 in A.S. 61 of 2005 and I.A. 1250 of 2006 in A.S. 62 of 2005 under Sub Rule (3) of Rule (1) of Order XXIII of the Code of Civil Procedure to withdraw both the suits. Under Ext.P2 order learned Sub Judge allowed the applications and permitted first respondent to withdraw O.S. 234 of 2003 and O.S. 66 of 2005 with liberty to WPC15304/2007 2 file fresh suits on the same cause of action. This petition is filed under Article 227 of Constitution of India challenging Ext.P2 order. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. Relying on the decision of the Apex Court in K.S. Bhoopathy v. Kokila (2000 (5) SCC 458) learned counsel appearing for petitioner vehemently argued that learned Sub Judge did not apply the principles laid down by the Apex Court and granted permission to institute a fresh suit for the mere asking even though after elaborate trial it was found that petitioner has been in possession of the property and there is no formal defect in the institution of suits for injunction to grant liberty to file a fresh suit on the same cause of action. The learned counsel appearing for petitioner relying on the decision of Apex Court in Executive Officer, Arthanareswarar Temple v. R. Sathyamoorthy and Others (1999 (3) SCC 115) which was relied on by the Apex Court in Bhoopathi’s case (supra) argued that the permission sought to withdraw the suit at the appellate stage is to be denied only if the effect would be nullifying the finding in favour of the defendants and when the WPC15304/2007 3 findings in the counter claim were not nullified, petitioner cannot have any grievance and therefore the writ petition is only to be dismissed. 4. Ext.P2 order passed by learned Sub Judge establishes that while allowing the application and granting liberty to the appellant to withdraw the suits, with liberty to file fresh suits on the same cause of actions, learned Sub Judge did not bear in mind the settled legal principles including the one laid down in Bhoopathi’s case. 5. Both the suits are only for injunction restraining respondents/defendants from trespassing into the plaint schedule property. Petitioner, the sole defendant in one of the suits, raised a counter claim in that suit contending that he has been in possession of property and first respondent/plaintiff is not entitled to trespass into the property. The trial court after recording the evidence upheld the case of the petitioner in O.S. 66 of 2005 and granted the counter claim in his favour and restrained plaintiff from trespassing into plaint schedule property. Ext.P2 order itself shows that the formal defect projected by the plaintiff was not any formal defect in institution of the suits for injunction, but the defect in seeking a decree for WPC15304/2007 4 injunction instead of decree for recovery of possession. In law a dismissal of the suit filed by plaintiff for injunction simplicitor by itself will not disentitle him from instituting another suit for recovery of possession on the strength of title. Therefore even without any liberty sought for or granted, plaintiff who could not succeed in getting a decree for injunction will definitely be entitled to institute a suit for recovery of possession on the strength of title, so long as there is no finding against him on the question of title in the suit for injunction. 6. Ext.P1 common judgment shows that title was not an issue framed, tried or decided by the Courts below. Therefore, even if appeals were dismissed confirming Ext.P1 judgment, it would not have disentitled the plaintiff from instituting a fresh suit for recovery of possession on the strength of title. In such circumstances, on the facts and circumstances of this case, permission to institute a fresh suit is not necessary. The apprehension of the learned counsel appearing for petitioner is that by the liberty granted under Ext.P2, plaintiff would again file a suit for injunction. 7. On going through Ext.P2 order I do not find that there is any reason for any such apprehension. The very WPC15304/2007 5 permission sought for by the plaintiff is to institute a fresh suit for recovery of possession contending that he was advised that he should have sought a decree for recovery of possession. In such circumstances I do not find it is necessary in the interest of justice to interfere with Ext.P2 order invoking the powers under Article 227 of Constitution of India. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-