IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 24835 of 2009(O) --------------------------------------- AGAINST THE ORDER DATED 23/07/2009 IN IA 1275/2008 IN OS.818/2000 of MUNSIFF COURT, THIRUVALLA .................... PETITIONER(S): ---------------------- 1. KESAVAN,AGED 58 YEARS, S/O. KUTTIKESAVAN, RESIDING AT MAVUNKAL HOUSE, FROM KAKKANATTU KUZHIYIL, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE,MALLAPPALLY TALUK. 2. RAJAPPAN, AGED 55 YEARS,S/O.KUTTIKESAVAN, RESIDING AT MAVUNKAL HOUSE, FROM KAKKANATTU KUZHIYIL, ANJILITHANAM MURI,KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK. BY ADV. MR.P.HARIDAS RESPONDENT(S): ------------------------ 1. NJANAMMA THANKAMMA, MAVUNKAL HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK. 2. PRASANNAN NAIR,S/O. NJANAMMA THANKAMMA, MAVUNKAL HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK. 3. OMAN,D/O.NJANAMMA THANKAMMA, MAVUNKAL HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK. 4. JOHN KURIEN,S/O.KURIEN,VALIYAMANNIL HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLPPALLY TALUK. 5. BINU JACOB, ELAVUMMOOTTIL HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK. 6. K.T. KURIEN, KANIANTHARA HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.24835 of 2009 - O --------------------------------- Dated this the 7th day of September, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “To issue appropriate writ, order or direction, setting aside Exhibit P6 order and also may allow Exhibit P5 application.” 2. I heard the learned counsel for the petitioners. 3. Having regard to the submissions made and taking note of the facts and circumstances, I find no notice to the respondents is necessary and hence it is dispensed with. 4. An amendment application moved by the petitioners/plaintiffs was turned down by Ext.P6 order by the learned Munsiff holding that it is highly belated and no ground has been made out for exception to show any indulgence to overcome the proviso to Order VI Rule 17 of the Code of Civil Procedure. After going through Ext.P6 order with reference to the submissions made by the learned counsel, I find no impropriety or illegality in the order passed by the learned Munsiff. Taking note of the insurmountable difficulty in getting W.P.(C).No.24835 of 2009 - O 2 the reliefs by prosecuting the suit without carrying out the proposed amendment, the learned counsel for the petitioners sought for a direction/order to the court below to grant them permission to withdraw the suit with liberty to file a fresh suit. This Court need not grant any permission to the petitioners/plaintiffs to move an application before the court below to seek permission for withdrawal of the suit to file a fresh suit. If the suit is liable to fail on account of some formal defect, it is open to the plaintiffs to seek for its withdrawal with a prayer for liberty to file a fresh suit. In case any such application is moved by the petitioners/plaintiffs, needless to point out, the court below has to consider it on merits and pass appropriate orders taking note that a formal defect should not cause prejudice to any of the parties and, at any rate, it should not be treated as fatal foreclosing their substantive rights over immovable property. The bar of limitation may not also be applicable where there is a continuous cause of action. Learned counsel for the petitioners made a plea that the interim order passed in the suit may be allowed to continue at least for a W.P.(C).No.24835 of 2009 - O 3 period of one month irrespective of the withdrawal of the suit. I direct the court below to pass appropriate orders on the request to keep the interim order in force for a period of one month, subject to orders on the application for withdrawal of the suit. With the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-