IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 OP(C).No. 3810 of 2011(O) -------------------------------- OS.156/2011 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER -------------- ROSHAN, AGED 48, S/O.PADINJARANGADI KUNJUKUTTAN, KIZHUR DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): -------------------- 1. KALYANI, W/O.PADINJARANGADI KUNJUKUTTAN, KIZHUR DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, PIN 680523. 2. JAYANTHI, D/O.PADINJARANGADI KUNJUKUTTAN KIZHUR DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, PIN 680523. 3. VISHNUDAS, S/O.MADAMBATH PALLIYALIL VISWANATHAN, KIZHUR DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, PIN 680523. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3810/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.156/2011 ON THE FILE OF THE LEARNED MUNSIFF COURT, CHAVAKKAD DATED 2/2/2011. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 AND 2 SUIT DATED 27/6/2011. P3: COPY OF THE APPLICATION I.A.NO.3565/2011 IN EXT.P1 SUIT DATED 7/7/2011. P4: COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT 1 AND 2 HEREIN TO EXT.P3 APPLICATION DATED 04/08/2011. P5: COPY OF THE ORDER PASSED IN IA NO.3565/2011 IN O.S.NO.156/2011 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD DATED 20/9/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ----------------------------------- O.P.(C)No.3810 of 2011 --------------------------------- Dated this the 23rd day of November, 2011 JUDGMENT Plaintiff in O.S.No.156 of 2011 of the court of learned Munsiff, Chavakkad is aggrieved by Ext.P5, order refusing to permit petitioner withdraw reliefs A and C in the plaint with liberty to file fresh suit with respect to the document in question. 2. Petitioner sued the respondents for a declaration that release deed No.2404 of 2010 and document No.2811 of 2011 executed thereafter are void(relief A in the plaint) and alternatively to set aside the said documents(relief C in the plaint). Petitioner also prayed for a decree for prohibitory injunction against her forcible eviction from the suit property (relief 'B' in the plaint). Respondents filed Ext.P2, written statement. They contended that market value of property and valuation given by petitioner are not correct and that if the reliefs are properly valued, the court of learned Munsiff will have no pecuniary jurisdiction to try the suit. At that stage petitioner filed O.P.(C)No.3810 of 2011 2 Ext.P3, application to withdraw reliefs A and C with liberty to file fresh suit regarding the documents in question. That application was dismissed by Ext.P5, order holding that no formal defect is involved to allow withdrawal. 3. Learned counsel contends that since there is no proper valuation of reliefs A and C as contended by the respondents, it is a 'formal defect'. 4. I am unable to accept the contention. 'Formal defect' means some defect in form. No doubt, the court under order 23 Rule 1(3)(b) of the Code of Civil Procedure has the power to allow the suit to be withdrawn if there exists other 'sufficient grounds' also. But, the mere fact that there is no proper valuation of Reliefs A and C in the plaint if at all true, is not a ground on which reliefs A and C could be allowed to be withdrawn without prejudice to the right of petitioner to file a fresh suit. 5. Learned counsel requested that petitioner may be permitted to file appropriate application for amendment of valuation of reliefs A and C in the plaint. I make it clear that it is O.P.(C)No.3810 of 2011 3 open to the petitioner, if he is otherwise entitled, to move such application as provided under law. If such application is filed, learned Munsiff shall consider the same and pass appropriate orders after hearing the respondents as well. With the above observation, this Original Petition is disposed of. sd/- THOMAS P JOSEPH, JUDGE /True copy/ P.A. to judge ln