IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 WP(C).No. 6426 of 2008(M) ------------------------------------ AGAINST THE ORDER DATED / / IN IA 248/08 ORDER IN OS.210/2004 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER: -------------------- THOMAS, S/O.CHACKO, AGED 57 YEARS, PULLAN HOUSE, KOZHIPPILLY KARA, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENTS: ----------------------- 1. LINCY GEORGE, W/O.GEORGE, AGED ABOUT 31 YEARS, MALIKUDIYIL HOUSE, MALAYINKEEZHU KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. 2. GEORGE, S/O.LATE VARKEY, AGED 33 YEARS, MALIKUDIYIL HOUSE, MALAYINKEEZHU KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. 3. BRIJITHA, W/O.LATE VARKEY, AGED ABOUT 70 YEARS, MALIKUDIYIL HOUSE, KOZHIPPILLY KARA, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK. 4. JOHN, S/O.LATE VARKEY, AGED ABOUT 45 YEARS, MALIKUDIYIL HOUSE, KOZHIPPILLY KARA, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK. 5. AVARACHAN, S/O.LATE VARKEY, AGED ABOUT 40 YEARS, MALIKUDIYIL HOUSE, KOTTAPPADY KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK. 6. JAMEELA, W/O.SHAJI, AGED ABOUT 33 YEARS, KODIYATHU HOUSE, NEAR BISHOPS HOUSE, KOTHAMANGALAM. 7. KAMILA, W/O.JOSHI, AGED ABOUT 30 YEARS, VARAPPILLY HOUSE, KOLLIKAD, NEAR POLICE STATION, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- W.P.(C) No.6426 OF 2008 -------------------------- Dated this the 25th day of February, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition is filed against the order of the Munsiff's Court, Muvattupuzha in 248/2008 in O.S.No.210/2004. It was an application filed under Order XXIII Rule (3) to withdraw the suit with a permission to institute a fresh suit. The court below disposed of the matter, permitting the plaintiff to withdraw the suit, without liberty to institute a fresh suit in respect of the subject matter of the suit. When such a decision is rendered by the court, the court totally shuts the remedy for the party and it will amount to injustice being done to the said party. When an application for withdrawing the suit with liberty to file a fresh suit is filed, the duty of the court is to consider that matter and dispose of the same, but not to partly allow the petition for the reason that the plaintiff will be put into a situation where he cannot proceed with the present case, because of the liberty given to withdraw the suit and further he will not be permitted to file another suit for the reason that liberty to file a fresh suit is not granted. Under Order XXIII Rule (3) of the Civil Procedure Code, the court is competent to grant permission, W.P.(C) No.6426/2008 2 when there is a formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit. 2. The learned Munsiff has observed that the attempt is to overcome the cross examination etc., and therefore held that no ground exists. At any rate, the defect is not a formal defect. If there is some mistake in the plaint, certainly, it can be rectified in the suit itself by making appropriate amendment to the same, in accordance with the spirit of the law. 3. Therefore, I feel that it is a fit case, where the order passed by the learned Munsiff is to be set aside. I do so and I dismiss the application filed by the plaintiff, making it clear that the present plaintiff can continue with the suit which is pending and he is also permitted to file an application for amendment and impleading whatever he feels so and the court has to consider it on merits after hearing other side and dispose it of, in accordance with law. Till such time, the court is directed not to proceed with the trial of the suit, if it has already begun. The writ petition is disposed of, accordingly. (M.N.KRISHNAN, JUDGE) ps