IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 27691 of 2009(O) -------------------------------------- AS.121/2006 of SUB COURT, PALA OS.101/1988 of MUNSIF COURT, KANJIRAPPALLY .................... PETITIONER(S): --------------------- ABRAHAM, S/O. MANNI, VATTAKKADU VEEDU, VADAKKUMBHAGOM KARA, CHIRAKKADAVU VILLAGE. BY ADV. MR.VIJU ABRAHAM MR.JOY C. PAUL MR.DOMINIC JOHNSON RESPONDENT(S): ------------------------- 1. KHADEEJA BEEVI, D/O. NAGOOR RAWTHER, PIKALANI PUTHENPARAMBIL, VADAKKUMBHAGOM KARA, CHIRAKKADAVU VILLAGE. 2. KASSI BEEVI, D/O.NAGOOR RAWTHER, OF DO..DO..., 3. MARIYAM BEEVI, D/O. NAGOOR RAWTHER OF DO.........DO....... 4. SHAHUL HAMEED BAVA, B/O. NAGOOR RAWTHER OF DO....DO....... 5. MOHAMMED RAJA,S/O. AHAMMED SHAHIB, PIKALANIPUTHENPARAMBIL, NEAR S.H.U.P. SCHOOL, PONKUNNAM. 6. MUHAMMED SALIM, S/O. AHAMMED SHAHIB, PUTHENPURAKKAL VEEDU, NEAR ERUMELY PVT. BUS STAND, ERUMELY. 7. SUHARA BEEVI, D/O. HAMMED HAMSA, BISMI MANZIL, POOTHKUZHI,KANJIRAPPALLY. WP(C).No. 27691 of 2009(O) 8. MUHAMMED SIDDIQ, S/O. AHAMMED SHAHIB, PIKALANIPUTHEN PARAMBIL, NEAR S.H.U.P. SCHOOL, PONKUNNAM, 9. EMMANUEL, B/O. MANNI, VATTYAKKADU VEEDU, VADAKKUMBHAGOM KARA, CHIRAKKADAVU VILLAGE. 10. ANDREWS, B/O. MANNI OF DO...DO... 11. FRANCIS, B/O. MANNI OF DO...DO... 12. FR. SIMON, B/O. MANNI OF DO...DO.... 13. CRISTOPHER JOSEPH, B/O. MANNI OF DO...DO.... BY ADV. MR.C.HARINDRA MOHAN NAIR. R7 BY ADV. MR.SERGI JOSEPH THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2009, ALONG WITH WPC NO. 28246 OF 2009 AND WPC NO. 28276 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27691 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.S. NO.101/88. EXT.P2: COPY OF THE PETITION IN I.A. NO.953/2009. EXT.P3: COPY OF THE OBJECTION TO I.A. NO.953/2009. EXT.P4: COPY OF THE ORDER IN I.A. NO.953/2009. EXT.P5: COPY OF THE KACHEET . RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).Nos.27691, 28246 & 28276 of 2009 - O --------------------------------- Dated this the 12th day of November, 2009 J U D G M E N T These three writ petitions are filed by the common first appellant in three appeals which are now pending before the Sub Court, Pala. Petitioner was the sole plaintiff in three suits, one for declaration of title and recovery of possession and the other two for injunction. Admittedly, all the suits had been previously dismissed after trial, from which appeals had been preferred by the petitioner. One among the defendants, who was so arrayed in more than one suits had preferred a separate suit during the pendency of the above three cases, and that being decreed, it was challenged in appeal by the present petitioner. That appeal was also heard and considered along with the three appeals preferred against the decision rendered in the suits instituted by the petitioner. When the appeals were pending, petitioner had moved an application for amending the plaint. The appeals were allowed setting aside the judgment impugned and remitting the cases for fresh consideration with a direction for joint trial of all W.P.(C).No.27691 of 2009 - O and conn. cases. 2 the cases. After such remission and joint trial, all the four suits were dismissed vide Ext.P1 judgment. Petitioner/plaintiff preferred appeals against the decision rendered in his three suits where as the defendant who instituted the another suit, which was dismissed, did not pursue it by way of appeal. In the appeals preferred by the petitioner, he had moved applications, separately, for withdrawing the suits, in which adverse decision had been rendered against him, with liberty to file a fresh suit, stating that some formal defect had crept in the plaints which would cause prejudice to him in prosecuting the appeals. The applications were opposed to by the contesting respondents. Learned Sub Judge after hearing both sides, dismissed the applications moved for withdrawal of the suits with liberty to file fresh suits. Propriety and correctness of the orders passed by the learned Sub Judge on such applications in the respective appeal is challenged in these three writ petitions. 2. I heard the counsel on both sides. 3. From the submissions made and also taking note of the facts and circumstances presented, it is seen, one among the W.P.(C).No.27691 of 2009 - O and conn. cases. 3 suits had been filed as early in 1988 and other two suits in 1996 and 1999. It has also come out from the submissions made that there was a previous appeal from the decisions rendered in the suits and on remission ordered, the present decision impugned in the appeals dismissing the suits had arisen. Learned Sub Judge after considering the facts and circumstances has formed a conclusion that allowing of the request made by the petitioner/appellant for withdrawal of the suits with liberty to institute a fresh suits, would cause grave prejudice and injury to the respondents. One of the suits had been instituted 21 years ago has also been taken note of by the court in forming the opinion that permission sought for cannot be granted. Needless to point out, permission applied for by the plaintiff after inviting adverse decision in his suits in the appeals preferred against such decision stands on an entirely different footing from the general principles applicable for withdrawal of a suit or proceeding as covered by Order XXIII Rule 1 of the Code of Civil Procedure. In the given facts of the case it cannot be stated that even if there was formal defect in the drafting of the plaint it could not have W.P.(C).No.27691 of 2009 - O and conn. cases. 4 come to the notice of the plaintiff had he been vitgilant. After a span of 21 years from the institution of the suit, it is too late in the day for the petitioner/plaintiff, to canvass the case that some formal defect had crept in the plaint in presenting his case and that would cause him injury in prosecuting his claim. I do not find any impropriety or illegality in the order passed by the learned Sub Judge in turning down the request of the petitioner/plaintiff for permission to withdraw the suits with liberty to file a fresh suits. Writ petitions are closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-