IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 OP(C).No. 2841 of 2011(O) -------------------------------- OS.112/2007 of SUB COURT, MUVATTUPUZHA .................... PETITIONER: ---------------- 1. RINCY, W/O. AVERALL GEORGE, AGED 34, VALIKULATH HOUSE, MOOLAMATTOM.P.O, THODUPUZHA. 2. LINDA, D/O. AVERALL GEORGE, AGED 9 YEARS, VALIKULATH HOUSE, MOLLAMATTOM.P.O, THODUPUZHA, REP. BY HER MOTHER AND NEX FRIEND RINCY, W/O. AVERALL GEORGE, AGED 34, VALIKULATH HOUSE, MOOLAMATTOM.P.O, THODUPUZHA. BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.P.CHELLAPPAN SRI.E.N.HARI SRI.VIMAL K.CHARLES SMT.A.T.RENJU RESPONDENT(S): -------------------- 1. SHOBHANA, AGED 34,FATHER'S AND HUSBAND'S NAME NOT KNOWN, CHARAPPATHU HOUSE, THRIKALATHOOR, MUVATTUPUZHA - 682 331. 2. MINOR GEORGE, FATHER'S NAME NOT KNOWN, REPRESENTED BY HIS MOTHER AND GUARDIAN SHOBHANA, AGED 34, CHARAPPATHU HOUSE, THRIKALATHOOR, MUVATTUPUZHA - 682 331. 3. KABEER KHAN, S/O. BAVA RAWTHAR, AGED 44, POTTE KANDATHIL, MARADI VILLAGE, VADAKKAN MARADI KARA, MUVATTUPUZHA VILLAGE, PIN - 682 331. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2011, ALONG WITH OPC NO.2842 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2841/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IS O.S.112/2007 ON THE FILE OF THE SUB COURT, MUVATTUPUZHA. P2: COPY OF THE WRITTEN STATEMENT IN OS. 112/2007 ON THE FILE OF THE SUB COURT, MUVATTUPUZHA. P3: COPY OF IA 1886/2007 IN OS 112/2007. P4: COPY OF OBJECTION FILED BY THE PETITIONER IN EXHIBIT P3 APPLICATION FOR IMPLEADMENT. P5: COPY OF THE ORDER DATED 24/01/2011 PASSED BY THE SUB JUDGE, MUVATTUPUZHA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).Nos.2841 and 2842 of 2011 --------------------------------------- Dated this 11th day of October, 2011 JUDGMENT In O.P(C).No.2841 of 2011 challenge is to Ext.P5, order allowing impleadment of respondents 1 and 2 as additional defendants in the suit. That happened in O.S.No.112 of 2007 of the Sub Court, Muvattupuzha, a suit for specific performance of an agreement for sale (allegedly) executed by the late George. Third respondent filed that suit against petitioners claiming relief as aforesaid. Respondents 1 and 2 filed I.A.No.1886 of 2007 for their impleadment as additional defendants contending that first respondent is the wife of said George and the second respondent is the child born in that wedlock. They also claimed right over the property of the said Geroge as per a Will allegedly executed by the said George in their favour. The application for impleadment was resisted by petitioners by Ext.P4. Learned Sub Judge allowed the application by Ext.P5, order. That order is under challenge at the instance of petitioners/defendants in O.P (C).No.2841 of 2011. 2. Respondents 1 and 2 in O.P(C).No.2841 of 2011 (who are the respondents in O.P(C).No.2842 of 2011) filed O.S.No.111 O.P(C).Nos.2841 and 2842 of 2011 -: 2 :- of 2007 in the same Court for partition of property belonging to the said late George. There, again, respondents contended that they are the wife and child of the said George (who died on 20.04.2007) and who had (allegedly) executed Will in their favour. That suit was resisted by petitioners/defendants contending that first petitioner is the wife and second petitioner is the child of the said George born in the lawful wedlock, the marriage between first petitioner and said George was dissolved on 10.04.2007, there was a settlement between first petitioner and said George as per which 2/8share in the property of the said George was given to the petitioners and the remaining 6/8 shares went to the said George. They also disputed the status of respondents (in O.P(C).No.2842 of 2011) as wife and child of the said George, not to say about alleged execution of the Will. Petitioners took steps in O.S.No.111 of 2007 to sent the disputed Will to the expert. Allegedly at that stage respondents (in O.P(C). No.2842 of 2011) filed an application to return the original Will and later Ext.P4, application to withdraw the suit with liberty to file fresh suit. The applications were resisted by petitioners. Ext.P5 is the objection to Ext.P4, application. Learned Sub Judge allowed Ext.P4, application with liberty to file fresh suit by Ext.P6, order which is challenged in O.P(C).No.2842 of 2011. O.P(C).Nos.2841 and 2842 of 2011 -: 3 :- 3. Learned counsel for petitioners has contended that Ext.P5, order in O.P(C).No.2841 of 2011 allowing respondents 1 and 2 to be impleaded as additional defendants in O.S.No.112 of 2007 and Ext.P6, order in O.S.No.111 of 2007 allowing respondents in O.P(C).No.2842 of 2011 to withdraw the suit with liberty to file fresh suit are erroneous and against the provisions of the law, not to say that the factual situation did not warrant such orders. It is contended by learned counsel that since the second respondent is a minor represented by the first respondent as guardian or next friend as the case may be, there could not have been a withdrawal of the suit without seeking permission of the Court under the proviso to Rule 1 of Order XXIII of the Code of Civil Procedure (for short, "the Code”). It is also pointed out that the factual situation does not enable respondents to withdraw O.S.No.112 of 2007 at a time petitioners took steps to send the Will to the expert which revealed the Will is the result of forgery. It is also submitted by learned counsel that respondents in O.P(C).No.2842 of 2011 could not have taken a contention regarding right in the property of late George in the Family Court since the Civil Court has jurisdiction to entertain the suit as held in Krishnamma Vs. Viswajith (2009(4) KLT 840). O.P(C).Nos.2841 and 2842 of 2011 -: 4 :- 4. So far as Ext.P5, order in O.P(C).No.2841 of 2011 is concerned, it is argued that O.S.No.112 of 2007 is filed at the instance of respondents 1 and 2 in O.P(C).No.2841 of 2011. They are not necessary and proper parties in the suit and hence their impleadment in the suit was not required. 5. I shall first advert to the contentions raised as to the correctness of Ext.P6, order in O.P(C).No.2842 of 2011. In Ext.P4, application respondents stated that they learned that petitioners have obtained a preliminary decree for partition of the property belonging to the late George in O.P.No.1351 of 2006 of the Family Court, Ernakulam but petitioners suppress that fact in O.S.No.111 of 2007. Respondents also claimed that they have moved appropriate application in O.P.No.1351 of 2006 and in the circumstance, respondents requested that they may be permitted to withdraw O.S.No.111 of 2007 with liberty to file a fresh suit. 6. It is pointed out by learned counsel that in O.S.No.173 of 2007 the entire facts including the pendency of O.P.No.1351 of 2006 in the Family Court were disclosed. Hence it is idle to contend that it is at a later time that respondents learned about the said case. 7. Assuming so, that does not disable the respondents from seeking withdrawal of O.S.No.111 of 2011 with liberty to O.P(C).Nos.2841 and 2842 of 2011 -: 5 :- file fresh suit since there is possibility of conflicting decree being passed in O.S.No.111 of 2007 as against the preliminary decree passed in O.P.No.1351 of 2006. 8. I am not inclined to think that Rule 1 of Order XXIII of the code applied to the facts of the case since that provision referred to abandonment of the suit or part of the claim and not to a request for withdrawal. An “abandonment” of the suit must be distinguished from “withdrawal”. 'Abandonment' does not involve intervention of the Court while withdrawal is on a request made by the plaintiff and it requires an order of the Court. 9. Yet another argument that the learned counsel has advanced in O.P(C).No.2842 of 2011 is that for sub rule (3) of Rule 1 of Order XXIII of the Code to apply, there must be a formal defect in the suit or other sufficient ground which is akin to a formal defect but no such formal defect or circumstance akin to that is involved in the suit to allow its withdrawal with liberty to file a fresh suit. 10. True, that there is no formal defect pointed out in the suit, but, in the light of the decision in Prabhavathi Vs. Kunhathabi Umma (1981 KLT 438), clause (b) of Sub rule (3) of Rule 1 of Order XIII of the Code cannot be said to be controlled by clause (a) dealing with 'formal defect'. O.P(C).Nos.2841 and 2842 of 2011 -: 6 :- 11. The question whether the Will is genuine or not is not a matter required to be decided in this proceeding. Nor is this Court required to go into the question whether proceeding initiated by the respondents in O.P(C).No.2842 of 2011 in the Family Court is sustainable in that Court or not. 12. In the view of the admitted fact that petitioners have obtained a preliminary decree in O.P.No.1351 of 2006, I am inclined to think that learned Sub Judge was justified in allowing the respondents in O.P(C).No.2842 of 2011 to withdraw O.S.No.111 of 2007 with liberty to file a fresh suit. 13. Gong back to O.P(C).No.2841 of 2011, having regard to the claim being made by respondents 1 and 2 therein based on their (alleged) legal status vis-a-vis the late George and the Will (allegedly) executed by him, it was only proper that they were impleaded as additional defendants in O.S.No.112 of 2007. Viewed in that line I do not find any reason to interfere with the orders under challenge in these proceedings. Original petitions are dismissed accordingly. (THOMAS P JOSEPH, JUDGE) Sbna/-