IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 WP(C).No. 16344 of 2009(O) -------------------------- OS.323/2008 of MUNSIFF'S COURT, VAIKOM .................... PETITIONER(S): ------------------------- NOUSHAD, S/O.KOCHUMUHAMMED, AGED 41, NOUSIL MANSIL, THALAYOLAPARAMBU, VADAYAR VILLAGE, VAIKOM TALUK. BY ADV. MR.S.MOHAMMED AL RAFI RESPONDENT(S): --------------------------- 1. ASHOKAN, S/O.NARAYANANKUTTY, AGED 40, KADAKKAKATHU VEETTIL, EDAVATTOM KARAYIL, KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK. 2. RAGHU, S/O.APPU, AGED 40 YEARS, NALUKANDATHIL VEETTIL, EDAVATTOM KARAYIL, KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK. R1 & R2 BY ADVS. MR.R.S.KALKURA, MR.M.S.KALESH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.16344 OF 2009 -------------------------- Dated this the 15th day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) call for the records leading to Ext.P4 and quash the same order permitting the petitioner to withdraw O.S No. 323/08 on the file of Court of Munsiff Vaikom with liberty to file fresh suit. and ii) Such other reliefs as this Hon'ble Court deem just and proper in the facts and circumstances of the case. 2. Petitioner is the plaintiff in O.S 323/2008 on the file of the Munsiff Court, Vaikom. W.P.(C).No.16344 OF 2009 2 Suit is one for perpetual prohibitory injunction, in which an order of interim injunction was granted in favour of the plaintiff. While so the boundaries of the plaint property, according to plaintiff, were tampered by the defendants. The plaintiff, therefore, wanted to file a suit for fixation of the boundaries of the plaint property. He filed a petition to withdraw the suit with liberty to file a fresh suit for the relief of fixation of boundary of the property. The application was opposed by the defendants/respondents in the present petition. The learned Munsiff dismissed the application holding that he can file a fresh suit for fixation of the boundary and the present application moved for withdrawal of the present suit is an abuse of process of law. Impeaching the propriety and correctness of that order, plaintiff has filed this writ petition invoking the supervisory W.P.(C).No.16344 OF 2009 3 jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Notice being given, respondents have entered appearance. I heard the learned counsel on both sides. Perusing the order passed by the learned Munsiff, a copy of which is produced as Ext.P4, it is evident the learned Munsiff has not properly and correctly understood the scope and ambit of Order 23 Rule 1 of Code of Civil Procedure. When a plaintiff seeks permission to withdraw a suit or proceedings with liberty to file a fresh suit the question that emerges for consideration is whether leave has to be granted. It is the right of the plaintiff to give up or abandon his suit at any stage and he cannot be compelled to prosecute the suit if he does not want to do so. The question whether he is entitled to leave for filing a fresh suit after withdrawing the W.P.(C).No.16344 OF 2009 4 suit that alone is to be considered by the court when an application under the rule is moved by the plaintiff. Apparently while passing Ext.P4 order on the application filed by the plaintiff the enquiry was not directed as contemplated by the Rule. In that view I find P4 Order unsustainable, and liable to be set aside. I do so. Learned Munsiff is directed to consider the application of the plaintiff afresh and pass appropriate orders in accordance with law. 4. Writ petition is disposed with the direction as above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv