IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 OP(C).No. 3029 of 2011(O) ------------------------------------- IA. 416/2011 IN OS.308/2006 OF MUNSIFF COURT, PARAPPANANGADI .................... PETITIONER; ------------------- VALAYANGADAN SAITHU MUHAMMED, S/O. ABOOBACKER, A.R. NAGAR AMSOM DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER, SMT.M.SINDHU THANKAM. RESPONDENT(S): ------------------------- 1. PATHUMMU, D/O. ARIKKADAN PADIKKATHODI, ALASSAN MULLA, A.R. NAGAR AMSOM DESOM, A.R. NAGAR. P.O.-676305, MALAPPURAM DISTRICT. 2. UMMUHANI, D/O. ARIKKADAN PADIKKATHODI, ALASSAN MULLA, PERUVALLUR AMSOM, OLAKARA DESOM, PERUVALLUR. P.O.,-673 638. MALAPPURAM DISTRICT. 3. ABOOBACKER, S/O. VALAYANGADAN MUHAMMED KUTTY, A.R. NAGAR AMSOM DESOM, A.R. NAGAR. P.O.-676 305, MALAPPURAM DISTRICT. 4. ABDUL SALAM, S/O. VAKERI KUNHIMOIDEEN KUTTY, PALLIKKAL AMSOM DESOM, PALLIKKAL. P.O. PIN-673 653, MALAPPURAM DISTRICT. R1, R2 & R4 BY ADV. SRI.K.T.SHYAMKUMAR, SRI.HARISH R. MENON. R3 BY ADV. SRI.SANTHEEP ANKARATH. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3029 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S. NO. 308/2006 ON THE FILE OF THE MUNSIFF'S COURTS PARAPPANANGADI. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 1,2, AND 4 IN O.S. 308/2006 ON THE FILE OF THE MUNSIFF'S COURTS PARAPPANANGADI. EXT.P3 TRUE COPY OF AFFIDAVIT DATED 7-3-2011 IN SUPPORT OF I.A. NO.416 OF 2011 IN O.S. NO. 308 OF 2006 FILED BY THE PETITIONER BEFORE THE MUNSIFFS COURT, PARAPPANANGADI. EXT.P4 TRUE COPY OF THE OBJECTION DATED 8-3-2011 FILED BY THE RESPONDENTS TO EXT. P3. EXT.P5 TRUE COPY OF THE ORDER DATED 14-3-2011 IN I.A. NO.416/2011 IN O.S. NO.308 OF 2006 PASSED BY THE MUSIFFS COURT, PARAPPANANGADI. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3029 of 2011 ==================================== Dated this the 14th day of November, 2011 J U D G M E N T Petitioner is the plaintiff in O.S. No.308 of 2006 of the court of learned Munsiff, Parappanagady. Petitioner sued the respondents for a decree for prohibitory injunction against trespassing into plaint A schedule property, altering its present lie, nature or constructing a wall or road including any portion of plaint A schedule. Respondents 1, 2 and 4 filed written statement. Advocate Commissioner submitted report. Then petitioner realised that there was some mistake in partition deed No.2420 of 1997 under which petitioner was claiming right over the property. Hence petitioner filed Ext.P3, application under Rule 1 (3) of Order XXIII of the Code of Civil Procedure to withdraw the suit with liberty to file fresh suit. Respondents 1, 2 and 4 resisted that application by filing Ext.P4, objection. Learned Munsiff refused to grant permission as per Ext.P5, order observing that the affidavit in support of Ext.P3, application does not clearly say that the suit is liable to fail due to some formal defect and no other grounds are stated to allow petitioner institute a fresh suit O.P(C) No.3029 of 2011 -: 2 :- for the subject matter or part of the claim. Learned Munsiff also found fault with petitioner in not stating in the affidavit what type of suit is required to be filed with the leave of court after withdrawing the present suit. 2. Learned counsel for petitioner submits that sub-rule (3) of Rule 1 of Order XXIII does not require petitioner to state nature of fresh suit to be filed and what is required is only to show either that there is a formal defect or that there are other sufficient grounds to allow petitioner institute fresh suit for the subject matter of the suit or part of the claim. Learned counsel submits that since the present suit is one for prohibitory injunction if petitioner has no apprehension subsisting about trespass it was open to the petitioner to withdraw the suit even without leave of court to file fresh suit and institute fresh suit even in respect of the same subject matter if there is any fresh cause of action recurring. 3. Learned counsel for respondents 1, 2 and 4 has placed reliance on the decision in Neelakanta Pillai v. Madhava Kurup (2007 [2] KLT 340) to contend that learned Munsiff was justified in dismissing Ext.P3, application. 4. So far as the present suit is concerned, it is merely O.P(C) No.3029 of 2011 -: 3 :- for injunction court fee having been paid under Section 27(c) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). In a suit for injunction paying court under Sec.27(c) of the Act what is required to be decided normally is possession of plaintiff and no enquiry into title is required though for the purpose of deciding possession it is open to the court to refer to the document of title as well. If petitioner has no subsisting apprehension as to the alleged act of respondents 1, 2 and 4, it is not necessary that petitioner must proceed with the suit. There is also nothing wrong in petitioner filing a fresh suit even for prohibitory injunction in respect of the same subject matter if there is any fresh cause of action arising in his favour, not to say about the right of petitioner to file a fresh suit on title. In the light of the above I do not find it necessary to interfere with Ext.P5, order. Original Petition is closed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv