IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 CRP.No. 405 of 2011() --------------------- AGAINST THE ORDER DATED 08/08/2011 IN IA.2223/2011 IN OS.368/2001 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONERS/APPELLANTS/PLAINTIFFS ------------------------------------------------------ 1. BABY K JOSPEH, S/O. LATE K.M. JOSEPH, KANJIRAPPALLY HOUSE, PERUMBAIKADU, KOTTAYAM. 2. ALEYAMMA THOMAS, W/O. C.M. THOMAS, CHILAMPITTASSERIL HOUSE, PERUMBAIKATTUSERY KARA, PARAMPUZHA. 3. CHINNAMMA THOMAS, W/O. C.A. THOMAS, MALETTU HOUSE, AMANAKARA.P.O., RAMAPURAM. 4. MARYKUTTY BABICHAN, W/O. A.S. BABY, EDAKKARA, ARAKKULAM.P.O., EDAPPALLY VILLAGE. 5. THANKAMMA ABRAHAM, W/O. ABRAHAM, MUNDIYANICKAL, KARTHIKAPURAM.P.O., ALAKKODU VILLAGE. 6. KUTTYAMMA GEORGEKUTTY, W/O. GEORGUKUTTY, PORUNNARAPPALLY, KAVALAMKODAM.P.O., VAYALAR KIZHAKKU VILLAGE. 7. VASLAMMA MATHEW, W/O. MATHEW DEVASSIA, KANNAMTHARA, MALAKUNNAM.P.O., KURICHY VILLAGE. BY ADV. SRI.T.I.ABDUL SALAM SRI.PHILIP T.VARGHESE RESPONDENTS/APPELLANTS/DEFENDANTS: ----------------------------------- 1. DEVASSIA,S/O. CHACKO, NEDUPARATHALACKAL, PARAMPUZHA-682032 2. CHACKO, S/O. MATHAI, NEDUPARATHALACKAL, PARAMPUZHA-682032 3. SEBASTIAN, S/O. MATHAI, NEDUPARATHALACKAL, PARAMPUZHA-682032 4. JOSEPH, S/O. MATHEW, NEDUPARATHALACKAL, PARAMPUZHA-682032 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY PASSED THEZ FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.405 of 2011 --------------------------------------- Dated this 22nd day of September, 2011 ORDER The order dated 08.08.2011 of the Court of learned Additional Sub Judge, Kottayam on I.A.No.2223 of 2011 in O.S.No.368 of 2001 is under challenge. That is a suit filed by the original plaintiff (he died pending the suit and petitioners were impleaded as additional plaintiffs) for a decree for prohibitory and mandatory injunction concerning the suit properties. He contended that item No.1 is a garden land having an extent of 1.87Acres. The grandfather of the respondents was given permission to reside in plaint item No.2, shed situated in item No.1 in connection with his employment. It is the further contention that later the grandfather of respondents or the respondents as the case may be, put up additional sheds in item No.1 (item Nos.3 to 5) and hence the suit for prohibitory and mandatory injunction. Respondents claimed to be cultivating tenants of item No.1 not liable to remove the sheds. I am told that respondents had moved an application to refer the question of tenancy to the Land Tribunal which the trial court dismissed. That was challenged in this Court in C.R.P.No.461 of 2007 but, C.R.P.No.405 of 2011 -: 2 :- without success. This Court observed that since the application was moved after the evidence in the case was recorded, it is open to the appellate court to consider the plea of tenancy raised by respondents. Thereafter, in the year 2011 petitioners filed I.A.No.2223 of 2011 to withdraw the suit invoking Order XXIII Rule 1(3) of the Code of Civil Procedure (for short, "the Code”) raising two grounds – as it was later learned that the grandfather of respondents has another son, either he or his legal representatives are not impleaded in the suit and secondly, that sufficient pleadings have not been made in the plaint and in the circumstance petitioners wanted to bring a comprehensive suit. That application was resisted by the respondents. The objection raised by respondents found favour with learned Sub Judge who dismissed I.A.No.2223 of 2011 by the impugned order. 2. Learned counsel for petitioners has contended that though petitioners had pleaded that they intended to bring a comprehensive suit after withdrawing the present suit that question was not considered by the learned Sub Judge; instead, learned Sub Judge considered the question of non impleadment of another son (or his legal representatives) of the grandfather of respondents and the defect if any, in the pleadings in the plaint. Learned counsel has placed reliance on the decision in Prabhavathi Vs. Kunhathabi Umma (1981 KLT 438) to C.R.P.No.405 of 2011 -: 3 :- contend that for the purpose of bringing a comprehensive suit, the present suit could be withdrawn invoking clause (b) of Rule 1(3) of Order XXIII of the Code. Reliance is also placed on the decision in Umesh Chandra Saxena Vs. Administrative General, U.P, Allahabad and Ors. (AIR 1999 All 109, paragraph 29). 3. Going by clause (a) of Rule 1(3) of Order XXIII of the Code, the Court is empowered to permit to the plaintiff withdraw the suit with liberty to file a fresh suit when the suit is bound to fail for the reason of some formal defect and clause (b) deals with any other sufficient ground as enabling the Court to grant such permission. Assuming that the grounds stated in clause (b) of Rule 1(3) of Order XXIII of the Code is not analogous to the 'formal defect' referred in clause (a) the question is whether request for withdrawal ought to have been permitted. 4. As aforesaid, one reason stated is regarding non impleadment of another son (or his legal representative) of the grandfather of respondents. Even as per the case of petitioners, the grandfather of respondents was permitted to occupy item No.2 situated in item No.1 property in connection with his employment. Respondents on the other hand contended that their grandfather was a cultivating tenant. In other words, respondents are claiming right over the property under their grandfather ie, C.R.P.No.405 of 2011 -: 4 :- they represent estate of the deceased grandfather as they claim. The estate is substantially represented. Learned Sub Judge has observed that if the defect is not impleading the son (or his legal representatives) of the grandfather of respondents, that defect could have been cured by invoking Order I of Rule 10(2) of the Code. 5. So far as insufficiency of the pleadings is concerned, I must bear in mind claim of petitioners as referred to in the plaint that they are entitled to prohibitory and mandatory injunction on the strength of the plea that grandfather of respondents was permitted to occupy item No.2 shed in connection with his employment. The mere fact that there are no sufficient pleadings in the plaint (as contended by petitioners) is not a sufficient ground, not to say a formal defect enabling petitioners to withdraw the suit. I must also bear in mind that the suit was filed in the year 2001, recording of evidence was complete in the year 2006 and the present application for withdrawal comes in the year 2011. It is true that learned counsel has pointed out that it was in 2008 that the question of reference of tenancy to the Land Tribunal was raised and that was subject to a civil revision. That prejudice will be caused to the opposite party if withdrawal of fresh suit with liberty to file fresh suit is permitted, has to be born in mind. In Radha @ Radharani Dei Bhol Vs. Dibakar C.R.P.No.405 of 2011 -: 5 :- Nayak & Ors. (1988 IJR (22), page 18), in paragraph 20, the long delay in applying for withdrawal of the suit was taken as a ground to refuse the request. In paragraph 26 of that decision, it was held that the necessity to make proper averments in the plaint cannot be said to be a formal defect enabling plaintiffs to seek withdrawal of the suit. Having heard learned counsel for petitioners and gone through the order under challenge I do not find reason to interfere with the impugned order. This civil revision is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-