IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 WP(C).No. 1883 of 2008(Y) ------------------------------------ (O.S. NO.48/2003 OF THE SUB COURT, PALA) .... PETITIONER: ------------------- P.J. JOSEPH, SON OF JOSEPH, PULLATTU HOUSE, MELAMPARAKARA, THALAPPALAM VILLAGE PLASSANAL P.O., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHRI P.J.MATHEW, PULLATTU HOUSE, PLASSANAL P.O., KOTTAYAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) RESPONDENTS: ----------------------- 1. MARIAMMA @ OMANA, WIFE OF JOSEPH, RESIDING AT ERATHEATHU PURAYIDOM,BHARANANGANAMKARA BHARANANGANAM VILLAGE, BHARANANGANAM P.O. 2. JOSEPH, SON OF KURIVILA, KOKKATTU HOUSE, BHARANANGANAM KARA, BHARANANGANAM VILLAGE, BHARANANGANAM P.O. 3. ABRAHAM, S/O. KURUVILA, KOKKATTU HOUSE, BHARANANGANAM KARA, BHARANANGANAM VILLAGE, BHARANANGANAM P.O. 4. THRESIAMMA, W/O. JOY, PULIKKUNNEL HOUSE, OLIVIRIPPU KARA, UDUMPANNOOR VILLAGE, CHEENIKUZHI P.O. 5. BENNY JOHN, S/O. JOHN, NJONDIMAKKAL HOUSE, EDAMATTOM KARA, POOVARANI VILLAGE, EDAMATTOM P.O. 6. NIRMALA, W/O. BENNY, NJONDIMAKKAL HOUSE, EDAMATTOM KARA, POOVARANI VILLAGE, EDAMATTOM P.O. W.P.(C) NO.1883/2008 7. ANIAMMA, RESIDING AT KOKKATTU HOUSE, MALLIKASSERY KARA, MALLIKASSERY P.O., ELIKULAM VILLAGE,KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. ADV. SRI.M.P.ASHOK KUMAR FOR R2,3,7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1883/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE I.A. NO.1862/2007 OF FILED BY IST RESPONDENT PURPORTEDLY UNDER RULE 3 OF ORDER XXIII. EXT.P2:- COPY OF THE OBJECTIONS FILED BY THE PETITIONER TO EXT.P1 PETITION. EXT.P3:- COPY OF THE ORDER DT. 30.11.07 IN IA. 1862/07 PASSED BY THE SUB JUDGE, PALA. EXT.P4:- COPY OF THE ORDER DT. 30.11.07 IN OS. 48/04 PASSED BY THE SUB JUDGE , PALA. /TRUE COPY/ P.A. TO JUDGE tss W.P.(C) NO.1883/2008 M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.1883 of 2008 ------------------------------- Dated this the 3rd September, 2008. J U D G M E N T Petitioner is the 7th defendant and first respondent, the plaintiff, and other respondents the other defendants in O.S.No.48 of 2003, on the file of Munsiff Court, Palai. First respondent filed I.A.No.1862 of 2007, an application under sub- rule (3) of Rule 1 of Order XXIII of Code of Civil Procedure, for permission to withdraw the suit, with liberty to file a fresh suit. Under Ext.P3 order, petition was allowed on payment of cost of Rs.3000/= each to defendants 1,2, 6 and 7. As cost was paid, permission was granted to withdraw the suit. This petition is filed under Article 227 of the Constitution of India challenging Ext.P3 order, as well as the consequential permission granted. 2. Learned counsel appearing for the petitioner and first respondent were heard. W.P.(C) No. 2 3. The argument of the learned counsel appearing for the petitioner is that though serious objections were filed for the permission sought by the first respondent, under Ext.P3 order learned Sub Judge did not consider the objections at all, and the order is illegal and is to be set aside. 4. Learned counsel appearing for first respondent pointed out that under Ext.P3 order, a cost of Rs.12,000/= was directed to be paid and that cost was paid, and in such circumstances, there is no reason to interfere with Ext.P3 order. 5. On hearing the learned counsel and on going through Ext.P3 order, it is clear that learned Sub Judge did not consider the objection raised by the defendants while granting the leave sought for by the plaintiff. Under Ext.P3 order, petition was allowed recording that the court is of the opinion that there are sufficient grounds to allow the application, without specifying what are those grounds. 6. In such circumstances, Ext.P3 order is quashed. W.P.(C) No. 3 Learned Sub Judge is directed to re-consider I.A.No.1862 of 2007, after hearing the parties, and pass appropriate orders, in accordance with law. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.