IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No. 65 of 2009(G) --------------------------------------- OS.443/2005 of PRL.M.C., KOLLAM .................... PETITIONER: SUPRABHA, D/O.NALINI, AGED 66 YEARS, RESIDING AT GULNAR, PARIPPALLY P.O., KOLLAM. BY ADV. SRI.S.VASUDEVAN RESPONDENT: SALIM S.RAJAN, S/O. SOMARAJAN, UTHRADAM, PARIPPALLY P.O., DO VILLAGE, KOLLAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.65 of 2009 G -------------------------- JUDGMENT Heard counsel for the petitioner. In the nature of the order that I propose to pass in this writ petition, it is unnecessary to issue notice to the respondent. 2. The suit O.S.No.443/05 was filed by the petitioner for a decree of permanent prohibitory injunction as is submitted before me by the counsel for the petitioner. Petitioner moved I.A.No.5070/08 in the said suit under Order XXIII Rule 1(3) CPC to withdraw the suit with permission to institute a fresh suit for declaration of title and possession of the petitioner/plaintiff over the scheduled property, as according to him, the defects in the plaint could not be cured by making an amendment application. The court below, vide order impugned, namely Exhibit P3 order dated 11.10.2008, granted leave to withdraw the suit, but without liberty to file fresh suit on the same cause of action. It is WPC 65/09 2 aggrieved by the said order that the petitioner/ plaintiff has preferred this writ petition. 3. When a petition is filed seeking for leave to withdraw the suit with permission to institute a fresh suit on the same cause of action, it is for the court to grant permission as prayed for if grounds exist, to allow such prayer or otherwise to dismiss the application and not to pass an order allowing the petition partly whereby, the plaintiff, who withdraws the suit, will be debarred from filing a fresh suit on the same cause of action. In the instant case, the court below has not granted permission to file fresh suit, but, at the same time, has allowed the application partly permitting withdrawal of the suit. The order is not legal and is prejudicial to the petitioner/ plaintiff and requires to be set aside. 4. In the result, I set aside Exhibit P3 impugned order dated 11.10.2008 passed by the court below on I.A.No.5070/08 in O.S.No.443/05 and remit WPC 65/09 3 back I.A.No.5070/08 to the court below for disposal afresh according to law. The writ petition is, thus, disposed of. Petitioner is directed to produce a copy of this judgment before the Munsiff with notice to the counsel for the respondent/defendant in the court below as this writ petition is being disposed of without notice to the respondent/defendant. 2nd January, 2009 (K.P.Balachandran, Judge) tkv