IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 25678 of 2007(F) -------------------------- OS.228/2003 of I ADDL.MUNSIFF'S COURT-II,NEYYATTINKARA .................... PETITIONER(S): --------------- SARASWATHY AMMA, D/O.GOMATHI AMMA, RESIDING AT ATHIRA, ELAMANOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY POONKAVILA VEEDU, KULATHOOR DESOM, NYYATTINKARA TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SARIN PANICKER SRI.M.R.SASITH PANICKER RESPONDENT(S): --------------- 1. THOMAS NADAR, S/O.ARUMANAYAKOM NADAR, NELLIVILA VEEDU, KULATHOOR PAKUTHY, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 2. NESSAYYAN NADAR, S/O.ARUMANAYAKOM NADAR, NELLIVILA VEEDU, KULATHOOR PAKUTHY, NEEYYATTINKARA TALUK, THIRUVANANTHAPURAM. ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.RAJAN VELLOTH FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.A.S.SABU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPPENDIX PETITIONER'S EXHIBITS:- P1: True copy of the delay petition in I.A.No.2082/05 filed by petitioner. P2: True copy of the I.A.3736/05 filed by the petitioner before the 2nd Addl. Munsiff's Court, Neyyattinkara. P3: True copy of the I.A.no.829/06 before the Addl. Munsiff Court-II, Neyyattinkara. P4: True copy of the order in I.A.No.829/06 before the Additional Munsiff's Court-II, Neyyattinkara. P5: True copy of the affidavit by the petitioners Advocate Mohankumar. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 25678 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5th day of October, 2009 JUDGMENT In this writ petition under Article 227 of the Constitution of India the plaintiff in O.S.No.228 of 2003 of the Additional Munsiff's Court-II, Neyyattinkara seeks to set aside Ext.P4 order of the Munsiff dated July 17, 2006 dismissing I.A.No.829 of 2006 and to restore I.A.No.3736 of 2005. 2. The petitioner filed O.S.No.228 of 2003 before the Additional Munsiff's Court, Neyyattinkara seeking a declaration of her title over the plaint schedule property and recovery of possession after putting the boundaries. When the suit was posted for trial on 1-12-2003, the petitioner filed I.A.No.7124 of 2003 to withdraw the suit with liberty to file a fresh suit. The above application was dismissed by the lower court and the suit was posted for trial to December 3, 2003. On that day the suit was dismissed for default with cost. The petitioner filed I.A. No.2082 of 2005 to restore the suit, which was dismissed for default. Thereafter, the petitioner filed I.A. No.3736 of 2005 for restoration of I.A.No.2082 of 2005, which was also dismissed for non-representation of the petitioner. Again the petitioner filed I.A.No.829 of 2006 for restoration of I.A.No.3736 of 2005. The above I.A. was also dismissed WPC 25678/07 2 by the court below by order dated July 17, 2006. Ext.P4 is the copy of that order. 3. Heard the learned counsel on both sides. 4. After perusing the records and hearing the submissions of both the counsel, I feel that the petitioner/plaintiff can be allowed to withdraw the suit with liberty to file a fresh suit. Hence, the order of the court below dismissing I.A. No.7124 of 2003 is set aside and I.A. No.7124 of 2003 is allowed permitting the petitioner to withdraw the suit with liberty to file a fresh suit. The writ petition is disposed of as above. P.Q.BARKATH ALI, JUDGE. mn.