IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 CRP.No. 712 of 2008() --------------------- AGAINST THE ORDER DATED 23/06/2008 IN IA.2426/2008 IN OS.592/1997 of ADDL.MUNSIFF COURT, KOLLAM .................... REVN. PETITIONER(S): --------------------- YOHANNAN, AGED 80 YEARS, S/O PETHIRU, PALLIVADAKKATHIL, NORTH MYLAKKADU CHERRY, THAZHUTHALA VILLAGE. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN RESPONDENT(S): --------------- 1. ZAVIER BABY, PUTHEN VEEDU, THAZHUTHALA. 2. SEBASTIAN VINCENT, ALUMKADAVIL VEEDU, THAZHUTHALA. 3. HENTRY BOSE, CHAMAVILA VEEDU, THAZHUTHALA. 4. GRACY VARGHESE, SANTHOSH BHAVAN, TAHZHUTHALA. 5. ALBERT FERNANDEZ, SANTHOSH BHAVAN, THAZHUTHALA. 6. MERCY MANUVEL, SANTHOSH BHAVN, THAHUTHALA. 7. PHILOMINA,SANTHOSH BHAVAN, THAZHUTHALA. 8. CICILY, SANTHOSH BHAVAN, THAZHUTHALA. CRP NO.712/2008 2 9. SHERLY, SANTHOSH BHAVAN, THAZHUTHLA. 10. JESSY, SANTHOSH BHAVAN, THAZHUTHALA. 11. SANTHOSH, SANTHOSH BHAVAN, THAZHUTHALA. 12. ROYISON, SANTHOSH BHAVAN, THAZHUTHALA. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.712 of 2008 -------------------------------------- Dated this the 3rd day of November, 2008. ORDER Heard counsel for petitioner. 2. Plaintiff in O.S.No.592 of 1997 of Additional Munsiff's Court, Kollam filed I.A.No.2426 of 2008 for permission to withdraw the suit with liberty to file fresh suit. Learned Additional Munsiff dismissed the application vide impugned order dated 23.6.2008. Challenging that order petitioner filed this Civil Revision Petition. Learned counsel for petitioner contends that the court below has dismissed the application without application of mind. 3. It is not in dispute that petitioner filed the suit against respondents 1 to 3 originally, seeking decree for prohibitory injunction against trespass into the schedule property. Respondents 4 to 12 had obtained a decree against the petitioner and his children in O.S. No.699 of 1991 for prohibitory injunction and other reliefs concerning the same property. Petitioner preferred an appeal but the same was dismissed. S.A.No.457 of 1998 filed before this Court also ended in dismissal but, making it clear that since title is not adjudicated in that case, it is open to the petitioner to sue for recovery of possession on the strength of title. Instead of filing suit for recovery of possession on the strength of title, petitioner chose to file suit for injunction as if he is in possession of the property and that too,without impleading respondents 4 to 12 who obtained CRP No.712/2008 2 decree against the petitioner in O.S.No.699 of 1991 as confirmed in appeal and Second Appeal. It would also appear that petitioner had filed two other suits, also seeking decree for prohibitory injunction as if he is in possession of the property but the same were dismissed. Thereafter petitioner filed I.A.No.2426 of 2008 for permission to withdraw O.S.No.592 of 1997 with liberty to file fresh suit. Learned Additional Munsiff observed that there is no sufficient reason stated in the application which justified withdrawal of the suit. What is stated in the affidavit in support of the application for withdrawal is regarding the laches on the part of the petitioner or his counsel or that there is a material defect in the plaint which do not justify an order under Order XXIII Rule 1(3) of the Code of Civil Procedure. I do not find any illegality in the order under challenge. 4. It is contended by the counsel for petitioner that consequent to the dismissal of I.A.No.2426 of 2008 on 23.6.2008, the suit itself was dismissed on 24.6.2008. It is also contended by learned counsel that dismissal of I.A.No.2426 of 2008 should not stand in the way of the petitioner filing a suit for recovery of possession on the strength of title. It is clarified that whatever observations made by the learned Additional Munsiff while dismissing I.A.No.2426 of 2008 or, any of the observations contained in this judgment will be confined to the disposal of I.A.No.2426 of 2008. If the petitioner is so advised and if he is otherwise entitled, it will be open to him to challenge the dismissal of the suit on 24.6.2008 or file fresh suit for CRP No.712/2008 3 recovery of possession on the strength of title. With the above observation, Civil Revision Petition is dismissed. THOMAS P.JOSEPH, JUDGE. cks