IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 RSA.No. 413 of 2006() --------------------- AS.55/2000 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.144/1995 of SUB COURT, QUILANDY .................... APPELLANTS/APPELLANTS 2 & 3/PLAINTIFFS. -------------------------------------------------- 1. NIRANATH TOMY, S/O.JOSEPH, RESIDING AT KINALOOR AMSOM, KOYILANDY TALUK. 2. NIRANATH ROSAMMA, W/O.LATE N.JOSEPH, KINALOOR AMSOM, DESOM, KOYILANDY TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENTS/RESPONDENTS/ DEFENDANTS. ----------------------------------------------------- 1. N.J.MATHEW, NIRANATH, S/O.N.JOSEPH, KINALOOR AMSOM, KOYILANDY TALUK. 2. N.MARY, NARANATH, W/O.N.J.MATHEW, KINALOOR AMSOM, KOYILANDY TALUK. 3. SISTER CLEMANS, D/O.N.JOSEPH, S.H.CONVENT, PALA, KOTTAYAM. 4. ALICE JOSE, D/O.N.JOSEPH, KUZHIKOMBIL HOUSE, P.O.ELANCHI, ERNAKULAM. 5. CHINNAMMA THOMAS, D/O.N.JOSEPH, VADAKKEDATH HOUSE, THALAYAD, KOYILANDY TALUK. 6. JAMES JOSEPH, S/O.N.JOSEPH, NIRANATH HOUSE, THALAYAD, KOYILANDY TALUK. 7. VALSAMMA DOMINIC, D/O.N.JOSEPH, VALIYA MADATHIL HOUSE, KODENCHERRY, KOZHIKODE. BY ADV. SRI.C.P.MOHAMMED NIAS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ---------------------------------- R.S.A.NO.413 OF 2006 ----------------------------------------------------- DATED THIS THE 27TH DAY OF MARCH, 2008 J U D G M E N T Plaintiffs in O.S.No.144/95 on the file of Sub Court, Quilandi are the appellants. Defendants are the respondents. Appellants instituted the suit for declaration and permanent injunction. Declaration sought was the right to use plaint B schedule plot as a passage to plaint A schedule property belonging to them and a permanent prohibitory injunction restraining respondents from causing obstruction in using plaint B schedule road for ingress and egress. Respondents resisted the suit contending that appellants have no right to use the road which is a private road available to the respondents. 2. Learned Munsiff on the evidence of Pws 1 to 3, DWs 1 to 3, Exhibits A1 to A5, X1 and X2 and B1 to B14 and CW1 dismissed the suit holding that appellants did not establish any right to use plaint B schedule plot. Appellants challenged the judgment before 2nd Additional District Court, Kozhikode in A.S.No.55/2000. The learned District Judge on reappreciation of RSA.413/06 -2- evidence confirmed the finding of learned Munsiff and dismissed the appeal. It is challenged in second appeal. 3. When the appeal came up for admission, notice was issued before admission. Respondents appeared and as it was represented that the matter could be settled between the parties, appeal was referred to High Court Permanent Lok Adalath. But no settlement could be arrived at. The appeal was returned back to the court. 4. Learned counsel appearing for appellant and respondents were heard. Appellants filed I.A.No.711/07 an application under Rule 1(3) Order XXIII of Code of Civil Procedure for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. A counter affidavit was filed by respondents contending that when the matter has already been adjudicated and decided, appellants cannot be permitted to obliterate that finding by device of filing an application under Rule 1(3) of Order XXIII C.P.C. 5. Argument of the learned counsel appearing for appellants is that the suit and the appeal happened to be dismissed as the appellants did not specifically plead the precise right available to them and therefore an opportunity is to be granted to the appellants to institute a fresh suit setting out the exact right available to them. RSA.413/06 -3- Learned counsel appearing for respondents argued that the right of way claimed by appellants was considered by the trial court and the first appellate court and though a right of way by easement by necessity was claimed, it was negatived on the ground that an alternate way is available for the appellants. It was argued that no other right of way was claimed. It was also argued that right of way by implied grant was also considered and rejected by the first appellate court. Learned counsel appearing for respondents pointed out that the alternate way formed is not available as there is a level difference of plaint A schedule property and the alternate way suggested and right of way by implied grant was not accepted for want of pleadings and in such circumstances, the permission to withdraw the suit is to be granted. On hearing the learned counsel appearing for the parties, I do not find any substantial question of law involved in the appeal. Though permission was sought for to withdraw the suit with liberty to file a fresh suit, I do not find that there is sufficient cause to grant the permission sought for. Though appellants claimed that they have a right to use plaint B schedule road, as there is no other way available to plaint A schedule property, courts below on the evidence adduced RSA.413/06 -4- found that there is an alternate way available to the appellants. Though learned counsel appearing for respondents argued that the said alternate way cannot be used by the appellants because of the level difference, there is no evidence to substantiate the claim. The failure of the appellants to adduce sufficient evidence is not a ground to grant permission to withdraw the suit with liberty to file a fresh suit. So also on the pleading and evidence, appellants could not establish any right enabling them to get a declaration of right to use plaint B schedule property. In such circumstances, courts below rightly dismissed the suit. As the appellants cannot be permitted to withdraw the suit as provided under Rule 1(3) of Order XXIII C.P.C., that petition is also dismissed. It is clear from the judgments of the courts below that claim of appellants for a right of way by implied grant was not considered by the courts below for want of pleading. In such circumstances, dismissal of the appeal will not prevent appellants from instituting a suit based on the implied grant. M.SASIDHARAN NAMBIAR, JUDGE. dsn