IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 21448 of 2009(O) --------------------------------------- OS. NO.214/2001 OF MUNSIFF COURT, TIRUR. .................... PETITIONER: ------------------- PUTHUSSERY PARAMBIL FATHIMMU ALIAS KUNJIMMU, D/O.ABDU HAJI, KUTTIPPURAM AMSOM, PENGANNOOR P.O., MALAPPURAM DISTRICT. BY ADVS. MR.JAMSHEED HAFIZ, MR.SAJU.S.A. RESPONDENTS: ------------------------ 1. MAMMI, S/O.THARAKKAL KUNJI MARAKKAR, PAIKKANNOOR AMSOM, PAIKKANNOOR P.O., MALAPPURAM DISTRICT. 2. YOUSAF, S/O.MOIDEEN, PAIKKANNOOR AMSOM, PAIKKANNOOR P.O., MALAPPURAM DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.21448 of 2009 - O --------------------------------- 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 W.P.(C).No.21448 of 2009 - O 2 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 W.P.(C).No.21448 of 2009 - O 3 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 W.P.(C).No.21448 of 2009 - O 4 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/-