IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 CRP.No. 556 of 2008 --------------------------------- OS.218/2003 of MUNSIFF COURT, VARKALA .................... REVN. PETITIONER/(DEFENDANT): RAJENDRAN NAIR, S/O.VELUPILLAI, PUTHUVALVILA VEEDU, KANNAMBA DESOM, VARKALA VILLAGE, REP. BY THE POWER OF ATTORNEY HOLDER SHRI.VIKRAMAN NAIR, PUTHUVALVILA VEEDU, KANNAMBA, DESOM, VARKALA P.O. BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA RESPONDENTS/(PLAINTIFFS): 1. GOPALAKRISHNAN NAIR, PUTHUVALVILA VEEDU, KANNAMBA DESOM, VARKALA DESOM. 2. SANKARI AMMA, PUTHUVALVILA VEEDU, KANNAMBA DESOM, VARKALA VILLAGE. 3. DEVAKI AMMA, PUTHUVALVILA VEEDU, KANNAMBA DESOM, VARKALA VILLAGE. ADV. SRI.R.ANILKUMAR FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.556 of 2008 -------------------------- ORDER Heard counsel on both sides. 2. Petitioner/defendant raised a contention in the court below as regards maintainability of the suit O.S.No.218/03 on the file of the Munsiff's Court, Varkala contending that O.S.No.218/00 filed by the plaintiffs before that court earlier was withdrawn and it is thereafter that the present suit is filed and that therefore, the present suit is barred by res judicata. According to the respondents, the suit O.S.No.218/00 was withdrawn with leave to institute fresh suit and in compliance with order passed on the said application, viz., I.A.No.607/03 in O.S.No.218/00 and cost has also been deposited and therefore, there is no bar for the present suit. 3. The question, therefore, for consideration is as to what was the prayer made in I.A. No.607/03 filed in O.S.No.218/00; as to what was the order passed thereon by the court; whether leave was CRP 556/08 2 granted and if so on what condition as to what is the judgment/decree in O.S.No.218/00 and as to whether there is compliance with the direction if any of the court, for enabling withdrawal of the suit with leave. The necessary documents to establish those aspects were produced before the trial court by the defendant is what is submitted before me by the counsel for the petitioner/ defendant. But, the court below is not seen to have considered any of those aspects specifically discussing the above documents, the date of deposit of the amount in compliance with the order granting leave conditionally, etc. In the result, this revision petition is disposed of setting aside the impugned order of the court below and remitting the matter back to the court below to consider Issue No.1 afresh on merit and pass appropriate orders as expeditiously as possible. 21st November, 2008 (K.P.Balachandran, Judge) tkv