IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 SA.No. 268 of 1995() -------------------- AS.4/1988 of SUB COURT, OTTAPPALAM OS.234/1984 of MUNSIFF COURT, OTTAPPALAM .................... PLAINTIFF/RESPONDENT/APPELLANT: ------------------------------------- ACHATH CHAKKAMALAYATH RAVEENDRAN, S/o. SAROJINI AMMA SUDHA NIVAS, MANISSERI OTTAPPALAM TALUK, BY POWER OF ATTORNEY HOLDER K. KOCHU GOVINDAN NAIR BY ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE SRI.S.ANANTHAKRISHNAN SRI.N.C.JOSEPH DEFENDANTS/APPELLANTS/RESPONDENTS: --------------------------------------- 1. VARGHESE, S/o. MATHEW JOLY VIHAR, THRIKKANGODE AMSOM, MANISSERI DESOM OTTAPPALAM TALUK 2. RAVI, S/o. PARANGODAN POTTANKUNNATH , DO – DO- 3. SURENDRAN, S/o. RAGHAVAN PALLIKKARA, DO-- D 4. PONNAN, S/o. KUNHAMULAYAN KUTTIKKALTHODI , DO DO 5.* RAMAN, DO – DO (STRUCK OFF) 6. GOPALAN, S/o. GOVINDAN PANAMCHIKKAL, DO - - DO- - 7. THATHA, S/o. KOLAVAN PANMCHIKKAL THODI, DO - - DO - - 8. CHAMI, S/o. KOLAVAN DO - - DO- - 9. UNNIKRISHNAN, S/o. SANKARAN EALAMKULATH, DO - - DO- - 10. APPU, S/o. SANKARAN EDAPPALLIKUNNATH, DO – DO 11. SASI, S/o. SANKARAN KANDANASSERI, DO – DO 12. THOMAS ANTONY, S/o. THOMAS PRAKKUZHI DO - DO 13. MADHAVAN, S/o. KUNHAMULAYAN KUTTIKKALTHODI, DO – DO 14. CHAMI, S/o. KUNHAMULAYAN KUTTIKKALTHODI, DO - - DO 15. APPUKUTTY, S/o. VELU KUNNATH, VANIAMKULAM KOTHAYEER, OTTAPPALAM TALUK 16.* NARAYANAKURUP, S/o. NARAYANAN NAIR NADUVATH KALATHIL, DO – DO (STRUCK OFF) 17. RAGHAVAN, S/o. KUNHIKANNAN PALLIKKARA, MANISSERI DESOM OTTAPPALAM TALUK 18. BHARATHAN, S/o. ACHUTHAN KANDANASSERI DO – DO 19. CHANDRAN, S/o. MAKKU KALAPPATHIKKAL DO – DO 20. SREEKUMARAN, S/o. GOVINDAN EZHUTHASSAN, KALATHINGALPADI, DO – DO 21. RAVI, S/o. NARAYANAN, PANAMCHIKKAL, DO – DO- 22. JAYAN, S/o. KRISHNAN, VADAKKE PANAMCHIKKAL, DO – DO 23. RAMAKRISHNAN MASTER, S/o. RAVUNNI VARRIER, CHIRAYIL VEEDU, KULUKKALLUR, MANGHATTU VEEDU, MANISSERI, OTTAPPALAM 24. SANKARANARAYANA MENON S/o. GOPALA MENON, DWARAKE, MANISSERI, OTTAPPALAM 25. PARANGODAN, S/o. PONNAN POTTANKUNNATH, MANISSERI OTTAPPALAM 26. CHANDRIKA, S/o. RAGHAVAN PALLIKKARA, DO – DO 27.** SIVARAMAN, S/o. RAMAN NAIR KIZHAKKATHIL, MANISSERI OTTAPPALAM (STRUCK OFF) (* - R5 AND 16 STRUCK OFF FROM PARTY ARRAY VIDE ORDER DATED 29-10- 2007 IN I.A.1934/07) (** - R27 IS STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, VIDE ORDER DATED 03-06-2008 IN I.A.1141/08) ADV. SMT.PREETHY KARUNAKARAN (FOR R1, 15, 17, 21, 23 AND 24) SMT.S.JAYASREE (FOR R1, 15, 17, 21, 23 AND 24) SMT. M M DEEPA (FOR R1, 15, 17, 21, 23 AND 24) SRI. JAYAKAR K S (FOR R1, 15, 17, 21, 23 AND 24) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.268 of 1995F --------------------------------------- Dated this 25th day of November, 2009 JUDGMENT Respondents are served. Among them respondent Nos.1, 15, 17, 21, 23 and 24 are appeared through counsel. 2. The second appeal is in challenge of judgment and decree of learned Sub Judge, Ottappalam in A.S.No. 4 of 1988 reversing judgment and decree of learned Munsiff, Ottappalam in O.S.No.234 of 1984. According to the appellant/plaintiff, plaint schedule item No.1 was allotted to the share of himself, mother, brother and sister as per a partition deed dated 04-04-1977. Item No.2 of the plaint schedule is allotted to the grandmother and uncle of the appellant as per the said partition deed. He claimed that possession of item No.2 was given to himself, mother, brother and sister and that the said property lying contiguous with item No.1 is also in the possession and enjoyment of appellant and others. Formerly the property was bounded by fence on all sides. In the year, 1977 appellant constructed a granite wall on the southern side. There is a lane on the western side of the property. Gate of the old house was situated on the western side. On either side of the gate there was laterite stone walls to some extent. When appellant and others constructed a new house in the suit property, a compound wall was constructed on the western boundary a portion of which the respondents destroyed. Hence the suit for injunction and S.A.No.268 of 1995 2 recovery of damages to the tune of Rs.3100/-. Contesting respondents resisted the suit contending that appellant has constructed compound wall on the western side of the suit property encroaching to the public lane. They denied that they damaged any portion of the compound wall. Trial court decreed the suit. Contesting respondents took up the matter in appeal. First appellate court found that there is no evidence to show that respondents damaged the wall. First appellate court also was not impressed by the contention of appellant that he constructed compound wall on the western sides along the existing boundary and consequently allowed the appeal and dismissed the suit. That judgment and decree are under challenge in the second appeal raising substantial questions of law. 2. Appellant has filed I.A.No.2737 of 2009 seeking permission to withdraw the suit with liberty to file fresh suit. In the affidavit in support of the application it is stated by the appellant that during the pendency of the suit, he has constructed a barbed wire fencing along the western boundary of the suit property in the same lane the compound wall originally stood, that was not objected by any of the respondents or the local public and hence, he does not have any apprehension presently that the respondent or anybody else might interfere with the western boundary of the suit property. It is also stated that the Varikkassery Mana which owned property on the west of the lane (which is on the western side of the suit property) has surrendered a portion of that property on their eastern side making use S.A.No.268 of 1995 3 of which a convenient public lane has already been formed on the western side of the suit property which is sufficient for the use of public. Learned counsel submits that the said fact has been reported by the Advocate Commissioner in his report (Ext.C2 dated 03-11- 1985). In view of that development also, it is submitted that appellant does not seek any relief in the present litigation. It is in the above circumstances that request is made to permit the appellant withdraw the suit with liberty to file fresh suit in case of any fresh cause of action accruing to the appellant. 3. The application is not opposed by respondent Nos.1, 15, 17, 21, 23 and 24. It is submitted by learned counsel for appellant that respondent No.27 is no more and that in view of the subsequent development as reported in I.A.No.2737 of 2009, appellant is not impleading legal representatives of deceased respondent No.27. Order 23 Rule 1 of the Code of Civil Procedure permits a plaintiff to abandone the suit or part of his claim and under Sub Rule (3), Court may permit such person to withdraw the suit seeking liberty to institute sufficient suit if the suit is to fail by reason of any formal defect or there are sufficient grounds for allowing the plaintiff to institute fresh suit for the same subject matter or part of the claim. No question of any formal defect would arise on the facts of this case. Even then, if there exists sufficient grounds it is within the power of the Court to allow the appellant to withdraw the suit with liberty to file fresh suit. 4. So far as the present litigation is concerned, it is for a S.A.No.268 of 1995 4 decree for prohibitory injunction and recovery of damages. First appellate court found against the claim. Learned counsel for appellant submits that appellant is not pressing his claim for recovery of damages from the respondents. Hence the issue concerning recovery of damages does not survive for a decision. What remained is only the relief of injunction. Appellant sued on the apprehension that respondents might infringe his right over the suit property. As the situation now stands appellant does not have any such apprehension. The circumstances stated in I.A.No.2737 of 2009 in my view afford sufficient ground for this Court to permit the appellant to withdraw the suit. In the circumstances, I find no reason to disallow request of the appellant. Resultantly I.A.No.2737 of 2009 is allowed. Appellant is permitted to withdraw the suit with liberty to file fresh suit in respect of the same subject matter, except in the matter of recovery of damages from the respondents in case of any other cause of action accruing to the appellant. The appeal is disposed of accordingly. THOMAS P JOSEPH, JUDGE Sbna/