IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 WP(C).No. 31116 of 2005(D) ------------------------------------ AGAINST THE ORDER DATED / / IN IA 2329 2005 IN OS.35/2004 of MUNSIFF COURT,VARKALA .................... PETITIONERS: ---------------------- 1. DAISY, D/O.VASU, KUNNUVILA VEEDU, AYANTHI, CHERUNNIYOOR DESOM, CHERUNNIYOOR VILLAGE. 2. P.SUNIL, S/O.PAVITHRAN, P.B.NO.317, SERIA K.B. 1133, DARUSALAM, BRUHAI FROM KUNNUVILA VEEDU, CHERUNNIYOOR VILLAGE FROM THENGUVILA VEEDU, PARIPPALLY. 3. SREELINI, W/O.SUNIL, AGED 20, P.B.NO. 317, SERIA K.B. 1133, DARUSALAM, BRUHAI FROM THENGUVILA VEEDU, PARIPPALLY. BY ADVOCATE S MR.R.ANILKUMAR MR.P.BANI RESPONDENTS: ------------------------ 1. AJITH (BINOY), S/O.ASOKAN, KUNNUVILA VEEDU, AYANTHI, CHERUNNIYOOR VILLAGE, (BIJU, S/O.VEERAN SATHYADEVAN, POOMADAM, CHANTHAVATTOM, VARKALA VILLAGE, POWER OF ATTORNEY HOLDER FOR D1 AS PER ORDER IN IA 359/05 DT.7.4.05. 2. VIMALA, W/O.ANANDAN, KUNNIL VEEDU, AYANTHI, CHERUNNIYOOR VILLAGE. 3. ANANDAN, KUNNIL VEEDU, AYANTHI, CHERUNNIYOOR. BY ADVOCATES MR.P.K.MUHAMMED MR.C.R.SIVAKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31116 of 2005(D) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - THE TRUE PHOTOCOPYT OF THE PETITION IA NO. 2329 OF 2005 ON 22.10.2005. EXT.P2 - THE TRUE PHOTOCOPY OF THE ORDER IN I.A. NO. 2329 OF 2005 IN O.S. NO. 35 OF 2004 DATED 22.10.2005. RESPONDENTS' EXHIBITS: EXT.R3(a) - TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND AND 3RD RESPONDENTS IN O.S. NO. 35/2004 BEFORE HON'BLE MUNISFF'S COURT, VARKALA. EXT.R3(b) - TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 3RD RESPONDENT ON BEHALF OF THE 2ND RESPONDENT. // TRUE COPY // PA TO JUDGE rhs HARUN-UL-RASHID, J - - - - - - - - - - - - - - - - - - - - - - - W.P(C)No. 31116 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of March, 2009 J U D G M E N T This writ petition is filed seeking to set aside Ext.P2 order to the extent of awarding cost. The contention of the petitioners/plaintiff is that the conditional order passed awarding cost is without jurisdiction and therefore, liable tobe set aside. The plaintiff in the suit filed I.A. No. 2329 of 2005 seeking permission to withdraw the suit stating that there is technical defect in the plaint without prejudice to file fresh suit on the same subject matter. This was seriously contested by the defendants. The defendants contended that the filing of the suit and the present application for withdrawal are intended to harass the defendants. The court on facts held that the prayer of the plaintiff can be allowed on condition that they should compensate the defendants for the inconvenience and strain they took in defending the suit for more than 1½ year. The court also noticed that the interlocutory application was filed only when the case was posted for trial after including in the list and that defendants are made all preparations to defendant the suit. The W.P(C)No. 31116 of 2005 -2- permission to withdraw the suit with liberty to file a fresh suit was allowed on condition that plaintiff shall pay Rs.4,000/- as cost to the three defendants. I have gone through the Order 23 Rule 1(3)(b). The court is empowered to grant permission to withdraw his suit with a liberty to institute a fresh suit in respect of same subject matter or part thereof. The said provision also contemplates stipulating such terms as the court thinks fit. The allowing of the application on condition of payment of cost is passed by the court below in exercise with power conferred on it under Order 23 Rule 1(3)(b). I find no reason to interfere with the order passed by the court below. The writ petition is dismissed with cost on Rs.2,000/- to the respondents. HARUN-UL-RASHID JUDGE rhs