IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 840 of 2008(Y) ------------------------ OS.1631/2006 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S): ------------------------ NALINI PADMANABHAN, W/O LATE PADMANABHAN, KRISHNAGIRI APARTMENT, PERINGAVU, PUNKUNNAM VILLAGE, THRISSUR-680 002. BY ADVS. MR.V.V.ASOKAN, SMT.S.AMINA. RESPONDENT(S): --------------------------- 1. JANAKI AMMA, 'SREENILAYAM', PERINGAVU, PUNKUNNAM VILLAGE, THRISSUR-680 002. 2. RADHA BALAKRISHNAN, D/O. JANAKI AMMA, 'SREENILAYAM', PERINGAVU, PUNKUNNAM VILLAGE, THRISSUR-2. R1 BY ADV. MR.M.B.PRAJITH R2 BY ADV .MR.N.P.SAMUEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.840/2008Y APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PARTITION DEED DTD. 5/01/2004. P2: COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF THE PRIVATE ROAD AT SITE DTD. NIL. P2(A): COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF THE PRIVATE ROAD AT SITE DTD. NIL. P3: COPY OF THE PLAINT IN O.S.NO.1631 OF 2006 OF PRINCIPAL MUNSIFF COURT, THRISSUR DTD. 15/06/2006. P4: COPY OF THE WRITTEN STATEMENT CUM COUNTER CLAIM FILED BY THE DEFENDANT IN O.S.1631 OF 2006 DTD. NIL. P5: COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIM FILED BY THE 1ST RESPONDENT IN O.S.1631/06 DTD. 18/10/2007. P6: COPY OF THE APPLICATION IA.NO.9619 OF 2007 IN O.S.NO.1631 OF 2006 DTD. 17/10/2007. P7: COPY OF THE OBJECTION FILED IN I.A.NO.9619 OF 2007 DTD. 22/10/2007. P8: COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, THRISSUR IN I.A.NO.9619 OF 2007 IN O.S.NO.1631OF 2006 DTD. 13/12/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.840 OF 2008 -------------------------------- Dated this the 23rd day of November 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records of the case leading to Ext.P8 and set aside the same by the issue of an appropriate writ in the nature of certiorari or other appropriate writ, direction or order. ii) Grant such other orders as may be deemed necessary in the facts and circumstances of this case and in the interests of justice. 2. Petitioner is the defendant in O.S No. 1631 of 2006 on the file of the Munsiff Court, Thrissur. Suit was filed by the respondents seeking a decree of perpetual prohibitory injunction. Petitioner/defendant resisting the suit claim had raised a counter claim in his written statement. W.P.(C).No.840 OF 2008 Page numbers Later the respondents/plaintiffs moved an application under Order 23 Rule 1 of the Code of Civil Procedure for withdrawal of the suit seeking liberty to file a fresh suit on the same cause of action. The application so moved by the respondents/plaintiffs was objected to by the petitioner/defendant. The court below after hearing both sides allowed the application vide Ext.P8 order subject to terms directing the respondents/plaintiffs to pay a sum of Rs.1,000/- to the petitioner/defendant. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P8 order challenged in the writ petition with other exhibits produced, I find no impropriety or illegality in the discretion exercised by the learned Munsiff in allowing the respondents/plaintiffs W.P.(C).No.840 OF 2008 Page numbers to withdraw their suit with liberty to file a fresh suit. So far as the withdrawal of the suit is concerned, no permission from court is required. But the question whether plaintiffs in the given facts of the case can be permitted to file a fresh suit on the same cause of action in the previous suit after its withdrawal, definitely, is a matter to be looked into by the court when such permission is sought for. Perusing Ext.P8 order, I find the court below has considered that question as well and came to a conclusion that permission sought for by the plaintiffs deserves to be granted but subject to compensating the injury likely to suffered by the petitioner. Respondents/plaintiffs were directed to pay a sum of Rs.1,000/- as compensation to the defendant while granting them permission under Ext.P8 order to withdraw the suit with liberty to file a fresh suit. No interference with that order is called for. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// vdv P.A TO JUDGE