IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 WP(C).No. 36709 of 2007(T) -------------------------------------- OS.526/2006 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------------- SEBASTIAN ALEX, LENTHAMPARAMBIL HOUSE, VYTTILA DESOM, POONITHURA VILALGE, KANAYANNUR TALUK,ERNAKULAM. BY ADV. MR.C.S.ULLAS RESPONDENT(S): ------------------------- PYLEE ALEX, 12717 NE 86TH STREET, KIRKLAND, WASHINGTON,USA. BY ADV. MR.PHILIP MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 36709/2007-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.526/2006. EXT.P2: COPY OF THE WRITTEN STATEMENT IN O.S.526/2006. EXT.P3: COPY OF THE I.A.2081/2006 IN O.S.526/2006. EXT.P4: COPY OF THE I.A. NO.4022/2007 IN O.S.526/2006. EXT.P5: COPY OF THE COUNTER AFFIDAVIT TO I.A.4022/2006. EXT.P6: COPY OF THE ORDER DATED 19/07/2007 IN O.S.526/2007. EXT.P7: COPY OF THE ORDER DATED 19/07/2007 IN O.S.526/2006. EXT.P8: COPY OF THE JUDGMENT IN WP(C) NO. 24890/2007. EXT.P9: COPY OF THE DEED OF POWER OF ATTORNEY DATED 21/01/2007 PRODUCED IN O.S.613/2007 BY THE RESPONDENT. EXT.P10: COPY OF THE PLAINT IN O.S.613/2007. EXT.P11: COPY OF THE ORDER OF INJUNCTION DATED IN O.S.613/2007. EXT.P12: COPY OF THE I.A. NO.5901/2006 SERVED BY THE RESPONDENT. EXT.P13: COPY OF THE CERTIFIED COPY OF I.A. NO.5901/2006. EXT.P14: COPY OF THE DEED OF CANCELLATION SERVED BY RESPONDENT. EXT.P15: COPY OF THE PETITION FOR DIRECTION TO FURNISH THE STATEMENT OF ACCOUNTS. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE POSTAL COVER CONTAINING THE ENDORSEMENT OF DATE OF RECEIPT, 02/08/2007, BEING THE DATE ON WHICH THE COPY OF THE CAVEAT WAS SERVED ON THE PETITIONER. EXT.R2: COPY OF THE WP(C) NO. 24890/2007 FILED BY THE PETITIONER BEFORE THIS HONOURABLE COURT ON 14/08/2007. EXT.R3: COPY OF THE I.A.NO.7930/2007 IN O.S. NO.613/2007 FILED BY THE PETITIONER/DEFENDANT ON 28/11/2007. EXT.R4: COPY OF THE PRELIMINARHY OBJECTIONS AS TO THE MANINTAINABILITY OF THE SUIT FILED BY THE PETITIONER/DEFENDANT ON 29/11/2007. //TRUE COPY// P.A. TO JUDGE rs. S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 36709 OF 2007 ```````````````````````````````````````````````````` Dated this the 29th day of June, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “ Call for records leading to the issuance of Exts.P6 and P7 and set aside the same.” 2. Parties are admittedly brothers, and both claim under a Will executed by their late father. Initially, the respondent filed a suit for partition seeking his separate share under the Will. That suit, O.S.No.526/06, was later withdrawn with liberty to file a fresh suit. Subsequently, he filed a fresh suit as O.S.No.613/07 in which a relief of declaration as to joint possession of the properties with the petitioner herein, who is the defendant in that suit, and fixation of the boundary was sought for. The defendant filed this writ petition impeaching the propriety and correctness of the order passed by the learned Sub Judge in allowing withdrawal of the previous suit and also granting leave to the petitioner to file a fresh suit. Ext.P6 is the copy of the order granting the petitioner to withdraw the suit and Ext.P7, the copy of the order granting liberty to file fresh suit. Both these orders are impeached by the petitioner as unsustainable in law invoking the supervisory WPC.36709/07 : 2 : jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Learned counsel for the petitioner urged before me that pursuant to the Will executed by the late father, the division of the property had taken place and mutation was effected in the names of the respective sharers and as such there is no need for partition or for the relief of declaration sought under the present suit. In the previous suit, it was contended by the respondent that a Power of Attorney could not be executed by him at the time when that suit was instituted, but, that, according to the counsel, is totally false as evident from the Power of Attorney produced with the subsequently instituted suit showing that the instrument was executed six moths ago. The respondent has thereby played a fraud on the court, is the submission of the learned counsel. The learned Sub Judge, according to the counsel, went wrong in allowing the respondent to withdraw the earlier suit granting him liberty to file fresh suit. Countering the arguments of the learned counsel for the petitioner, it is submitted by the learned counsel for the respondent that the respondent is domiciled in the United States of America and he WPC.36709/07 : 3 : has previously executed a Power of Attorney in favour of his brother, the petitioner. Misusing the Power of Attorney, when attempts were made to alienate the property, after giving publication in Newspaper that any such alienation would be null and void, the respondent was compelled to institute the suit. Since the plaint was sent over to the United States of America for the signature of the respondent by inadvertence and without knowing the formalities in the presentation of a plaint, in some of the pages of the plaint the respondent failed to subscribe his signature and that formal defect was noted only after the institution of the suit. That being fatal to the case, an application was moved for its withdrawal. The learned Sub Judge after finding merit in the plea of the respondent that the suit was likely to fail on the ground of a formal defect, permitted him to withdraw the suit with liberty to file a fresh suit. There is no illegality or impropriety in the orders so passed, Exts.P6 and P7, is the submission of the learned counsel. 4. Having regard to the submissions made by the counsel on both sides with reference to the facts and circumstances presented and also the materials produced with the writ petition, I WPC.36709/07 : 4 : find that the learned Sub Judge has passed Exts.P6 and P7 orders exercising his discretion on the facts presented before him. No decision under dispute between the parties has been arrived at by the learned Sub Judge while passing Exts.P6 and P7 orders. The only question to be looked into is whether the learned Sub Judge has exercised his discretion in consonance with the legal principles applicable. The earlier suit was allowed to be withdrawn by the learned Sub Judge noticing that there were some formal defects in the plaint which would ultimately result in the suit being dismissed. No prejudice was caused to the petitioner when the learned Sub Judge exercised his discretion in allowing withdrawal of the suit permitting the respondent to institute a fresh suit. Whatever contentions the petitioner has to resist the suit claim, he can advance them in the present suit. The attempt of the petitioner, it appears, is to stultify even the prosecution of the case by the respondent though he is admitted of having the right claimed by him under the Will executed by their father. I do not want to express any opinion on the merits of the case since the disputes involved are yet to be adjudicated. The writ petition is devoid by any merit and it is dismissed. WPC.36709/07 : 5 : 5. The learned counsel for the petitioner submitted that in view of the pendency of the writ petition and also the stay granted by this court, no written statement has been filed in the suit so far and, therefore, a direction may be issued to the court below to receive his written statement within a reasonable time to be fixed by this court. I direct the learned Sub Judge to receive the written statement, if any, from the petitioner, provided it is filed within a period of 30 days from the date of receipt of a copy of this judgment. It is also made clear that whatever observations made in this judgment shall not have any reflection in the adjudication of the suit on merits. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge