IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 32556 of 2007(A) --------------------------------------- AGAINST THE ORDER IN IA. NO.4050/2006 IN OS.NO.34/2006 OF THE ADDL.SUB COURT, PALAKKAD .................... PETITIONERS: --------------------- 1. RAMESH KUMAR, S/O.SUNDARAN. 2. SMITHA, W/O.RAMESH KUMAR, BOTH ARE RESIDING AT KARIPPODE, PUTHEN VEEDU, KODUVAYUR AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU. RESPONDENTS: ------------------------ 1. SOOSHI, W/O.PRAMOD, RESIDING AT KALPRAKASH VEEDU, KUNNATHURMEDU, KUNNANUR AMSOM, PALAKKAD. 2. JOSHI, W/O.PREMADASAN, RESIDING AT KOTTUKAL VEEDU, ARIKANIYUR, KANDANASSERY, THALAPPILLY TALUK, THRISSUR. 3. DINESH, S/O.SUNDARAN, RESIDING AT NO.2, CHANDRANAGAR, MARUTHARODE AMSOM, PALAKKAD. 4. PUSHPAVANI, W/O.SUNDARAN, RESIDING AT KARIPPODE, PUTHEN VEEDU, KODUVAYUR AMSOM, CHITTUR TALUK, PALAKKAD. W.P.(C). NO.32556/2007-A: 5. VISWANATHAN, S/O.PONNU, RESIDING AT KANICHAMKULAMBU, KODUVAYUR AMSOM, CHITTUR TALUK, PALAKKAD. *6. RADHAKRISHNAN, S/O.RAVEENDRAN, RESIDING AT KANICHAMKULAMBU, KODUVAYUR AMSOM, CHITTUR TALUK, PALAKKAD. *THE NAME AND ADDRESS OF R6. IS CORRECTED AS; RAVEENDRAN, S/O. RAMAKRISHNAN, ANU NIVAS, KARIPODE.P.O., PALAKKAD, 678 503. AS PER ORDER IN I.A. 9692/09 DATED 03/08/2003. R1 TO R3 BY ADVS MR.D.KRISHNA PRASAD, SMT.O.K.SANTHA, R4 BY ADV. MR.S.B.PREMACHANDRA PRABHU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32556/2007-A: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE ORDER IN I.A. NO. 4050/2006 IN O.S. NO. 34/2006 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DTD. 30/01/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.32556 OF 2007 -------------------------- Dated this the 22nd day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to the issue of Ext.P1 order and set aside the same. ii) Declare that the grounds enumerated in Order XXIII Rule1(3) C.P.C are not satisfied and dismiss I.A No.4050/2006. Iii) Issue such other writ, order or direction as this Hon'ble Court deems fit and proper in the circumstances of the case. 2. Petitioners are the defendants 1 to 3 in O.S No.34 of 2006 on the file of the Sub Court, Palakkad. The above suit was one for partition, and respondents 1 to 3 were the plaintiffs and W.P.(C).No.32556 OF 2007 Page numbers others codefendants in the suit. Petitioners resisted the suit claim by filing a written statement. When the suit came up in the list for trial, respondents 1 to 3/ plaintiffs moved an application for withdrawing the suit with liberty to file a fresh suit. That application after hearing both sides was allowed by the court vide Ext.P1 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented, I find, no impropriety in the order of the court below allowing withdrawal of suit granting liberty to the respondents/plaintiffs to file afresh suit for partition. Suit being one for W.P.(C).No.32556 OF 2007 Page numbers partition so long as the tenancy in common continued plaintiff, despite dismissal of a previous suit otherwise than on merits, is entitled to file a fresh suit for separate possession and division of the property. Such being the position of law, there is no merit in the petition, and it is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv