IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 WP(C).No. 22408 of 2008(P) {AS.133/2007 OF THE VI ADDL.DISTRICT COURT, ERNAKULAM IN OS.401/2006 OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM} .................... PETITIONER(S): 1. K.J.ALBERT, S/O.JOB,AGED 64 YRS,RETIRED EMPLOYEE, KANIAMPURAM HOUSE, POONARIMANGALAM, MULAVUKAD.P.O, KOCHI. 2. SHELLY JOB, S/O.K.J.ALBERT,EMPLOYED ABROAD,KANIAMPURAM HOUSE, PONNARIMANGALAM,MULAVAKAD P.O.KOCHI.REP;BY POWER OF ATTORNEY HOLDER AND FATHER K.J.ALBERT,S/O.JOB,AGED,KANIAMPURAM HOUSE, PONARIMANGALAM, MULAVUKAD.P.O., KOCHI. BY ADV. SRI.P.B.KRISHNAN SRI.M.P.RAMNATH RESPONDENT(S): 1. JOSEPH @ JOSY, S/O.RAPHAEL, RETIRED EMPLOYEES, KANIAMPURAM HOUSE, PONNARIMANGALAM, MULAVUKADU P.O, KOCHI. 2. MARY ANTONY, SWASTAM W/O.LATE.K.R.ANTONY KANIAPURAM HOUSE, PONNARIMANGALAM,MULAVUKADU.P.O, KOCHI. 3. EALISWA,W/O.BLAYISIL, SWASTAM, KALLUNGAL HOUSE, VADAKUMPURAM MURIYIL, CHENNAMANGALAM TALUK, PARAVUR, GOTHURUTHY. 4. BLAYISIL, KALLUNGAL HOUSE, VADAKUMPURAM MURIYIL, CHENNAMANGALAM TALUK, PARAVUR, GOTHURUTHY. R1 & R2 BY ADV. SRI.S.SREEKUMAR R3 & R4 BY ADV. SRI.GINO PHILIP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22408 of 2008(P) :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE PHOTO COPY OF THE PLAINT IN O.S 282/2005 BEFORE THE HON'BLE MUNSIFF'S COURT, ERNAKULAM FILED BY RESPONDENTS 1 AND 2 AS PLAINTIFFS. EXT.P2: TRUE PHOTO COPY OF THE CERTIFIED EXTRACT OF DEPOSITION OF THE FIRST RESPONDENT HERIEN AS PW1 IN O.S 282/2005 BEFORE THE HON'BLE MUNSIFF'S COURT, ERNAKULAM. EXT.P3: TRUE PHOTO COPY OF THE JUDGMENT DATED 30.9.2006 IN O.S 282/2005 BEFORE THE HON'BLE MUNSIFF'S COURT, ERNAKULAM. EXT.P4: TRUE PHOTO COPY OF THE I.A.NO.1108/2008 IN AS 133/2007 BEFORE THE HON'BLE 6TH ADDITIONAL DISTRICT COURT, ERNAKULAM, FILED BY RESPONDENTS 1 AND 2. EXT.P5: TRUE PHOTO COPY OF THE COUNTER AFFIDAVIT FILED IN I.A.NO.1108/2008 IN AS 133/2007 BEFORE THE HON'BLE 6TH ADDITIONAL DISTRICT COURT, ERNAKULAM. EXT.P6: TRUE PHOTO COPY OF THE ORDER DATED 27.02.2008 IN I.A.NO.108/2008 IN AS 133/2007. EXT.P7: TRUE PHOTO COPY OF THE ORDER DATED 27.02.2008 IN AS 133/2007. EXT.P8: TRUE PHOTO COPY OF THE POWER OF ATTORNEY DATED 8.2.2007 EXECUTED BY SHELLY JOB IN FAVOUR OF PETITIONER. EXT.P9: TRUE PHOTO COPY OF THE PLAINT IN OS 401/2008, FILED BY RESPONDENTS 1 AND 2 HEREIN AS PLAINTIFFS. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. ---------------------------------------------------- W.P.(C)No.22408 of 2008 --------------------------------------------------- Dated this the 18th day of February, 2010 JUDGMENT Exts.P6 and P7 orders passed by the District Judge, Ernakulam allowing respondents 1 and 2, the appellants in A.S.No.133/07 on the file of the District Court, Ernakulam to withdraw the suit in which the decree impugned in the appeal had been passed and also the appeal, are challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. First petitioner in the writ petition is the 3rd defendant in O.S.No.284/05 filed by respondents 1 and 2 as plaintiffs before the Munsiff's Court, Ernakulam. Second petitioner is the son of the first petitioner, who was not a party to the above suit, but impleaded as a defendant in the subsequently suit filed by respondents 1 and 2 after getting permission on the basis of Exts.P6 and P7 orders. Respondents 3 and 4 in the writ petition are defendants 1 and 2 in W.P.(C)No.22408 of 2008 :: 2 :: O.S.No.284/05. The above suit was one for declaration of right of easement by prescription grant and necessity. That suit, after trial, was dismissed. Challenging the dismissal of the suit, respondents 1 and 2 preferred A.S.No.133/07. In the appeal they moved an application seeking withdrawal of the suit stating there was a formal defect in the plaint which rendered them incapable of getting the reliefs canvassed. Though the application was opposed by the contesting respondents including the 1st petitioner/3rd defendant in the suit, the learned District Judge, after hearing both sides, allowed that application by Ext.P6 order. Consequent to the passing of Ext.P6 order, the appeal was also allowed to be withdrawn by Ext.P7 order, subject to payment of costs of Rs.1,500/- granting permission to the appellants/plaintiffs to institute a fresh suit. Propriety and correctness of Exts.P6 and P7 orders are impeached in the writ petition. 3. I heard the counsel on both sides. W.P.(C)No.22408 of 2008 :: 3 :: 4. At the time of hearing, it was brought to my notice, under the permission obtained in Ext.P7, plaintiffs have instituted a fresh suit O.S.No.401/08 seeking a declaration of easement over a pathway allegedly running through the property of the defendants therein. The property in which such pathway is claimed originally belonged to respondents 3 and 4, but later conveyed under a sale deed in favour of the 2nd petitioner in the writ petition. In the above suit, respondents 3 and 4 and both the petitioners in the writ petition are impleaded as defendants. Learned counsel appearing for the petitioner assailed Exts.P6 and P7 orders passed by the appellate court contending that after inviting an adverse decision in the previous suit, that too after having a fullfledged trial, the withdrawal of that suit sought for could not have been entertained. Inviting my attention to the copy of the plaint, which was produced as Ext.P1, it is submitted by the counsel, a claim for easement, by way of prescription, W.P.(C)No.22408 of 2008 :: 4 :: grant and necessity, all of them together, in respect of the same pathway was canvassed setting forth a case that the plaintiffs have obtained such easement by permission granted by the defendants, the owners of the property. The trial court, after meticulous consideration of the case canvassed by the plaintiffs found the claim meritless. The case canvassed suffered not from formal defect, but something striking at the root of plaint claim showing disentitlement of the plaintiffs to seek a declaration for easement. The appellate court, without adverting to the pleadings and also the finality and conclusive nature of the adverse decision rendered in the suit against the plaintiffs, according to the counsel, had granted permission to withdraw the suit, with liberty to file a fresh suit on the same cause of action. 5. On the other hand, learned counsel for the respondents 1 and 2/plaintiffs submitted that the very nature of the pleadings formed in the former suit indicate that the mistakes in claiming the declaration W.P.(C)No.22408 of 2008 :: 5 :: of easement had been made by the counsel and not by the party. The court below, taking note of that circumstance, according to the counsel, has found “this is a fit case where permission has to be granted to the plaintiffs to withdraw the previous suit to institute a fresh suit on the same cause of action. 6. Perusing Exts.P6 and P7 orders, I find, the appellate court has granted permission taking note that the defects in Ext.P1 plaint in the former suit were fatal. Needless to point out that the plaint is drafted by a counsel even if based on the instructions given by the parties. A litigant approaches a counsel for professional guidance as he has no competency to frame a suit to ventilate his grievance or espouse his grievance before a court of law. Whether it be on the basis of an instruction given by the party or by the fault of the counsel the pleadings made in the plaint become self- destructive to the case canvassed or the reliefs sought for, it has to be examined taking note that none in the world is W.P.(C)No.22408 of 2008 :: 6 :: infallible. Every one is bound to make mistakes. Where the court is satisfied that the defect in the pleading arose by a mistake and more so, a bona fide mistake on the part of the counsel, it can exercise its discretion permitting withdrawal of the suit, whether it be on the trial stage or at the appellate stage. In the present case, noticing the defective pleading in the plaint and the circumstances presented, the court has permitted the withdrawal of the suit acceding to the request of the plaintiffs. The appellate court has also taken care to compensate the injuries suffered by the defendants by awarding cost to them while permitting withdrawal. I do not find any illegality or impropriety in Exts.P6 and P7 orders of the court below passed in exercise of its discretion. The learned counsel for the petitioners has submitted that the withdrawal of te previous suit should not be allowed to be construed as effacing whatever admissions made by the plaintiffs in that suit. I do not find any reason to entertain any apprehension W.P.(C)No.22408 of 2008 :: 7 :: that Exts.P6 and P7 orders by themselves would result in effacing the pleadings or evidence in the previous suit, whether it be on the part of the plaintiff or of the defendants. Whatever admissions made in the earlier suit can be considered in the latter suit. No further observations need be made by this court on the apprehension expressed by the learned counsel for the petitioner in disposing this writ petition. Suffice to state that no interference with the orders passed by the court below is warranted invoking the writ jurisdiction of this court. Writ petition is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//