IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 18386 of 2009(O) --------------------------------------- AGAINST THE ORDER DATED 30/03/2009 IN IA 630/2009 IN OS.563/2004 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER(S): --------------------- 1. V.P. JOSEPH @ BABY, S/O.V.U.PAULOSE, AGED 61 YEARS, VADASSERRY HOUSE, KADEBHAGOM, RAMESWARAM VILLAGE, PALLURUTHY. 2. SCICILY, W/O.JOSEPH, AGED 73, VADASSERRY HOUSE, KADEBHAGOM, RAMESWARAM VILLAGE, PALLURUTHY. 3. PETER, S/O.DAMIAN, KAIMATHURUTHIL, PUTHENVELIKKARA. BY ADV. MR.SABU GEORGE RESPONDENT(S): ------------------------ 1. PETER, S/O.MATHEW, AZHEEKAL HOUSE, KANNAMALY. 2. MATHEW JOSEPH, S/O.PETER, AZHEEKAL HOUSE KANNAMALY. 3. SREENIVASA SHENOY @ BABU, S/O.GOPALA SHENOY, ILANJIKAL HOUSE, CHERIYAKADAVU, KANNAMALY. R1 TO R3 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, SMT.NITA.N.S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.18386 of 2009 - O --------------------------------- Dated this the 12th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To set aside Exts.P9 and P10. ii) To allow Ext.P6 petition.” 2. Petitioners are the plaintiffs in O.S.No.563 of 2004 on the file of the Munsiff Court, Kochi. Suit was one for recovery of possession and the respondents are the defendants. When the suit came up for trial, petitioners moved an application for withdrawal of the suit with liberty to file a fresh suit stating that some formal defects prevent them from getting a decree prayed for. The application was objected to by the respondents/defendants. Learned Munsiff, after hearing both sides allowedwithdrawal of the suit but declined the liberty to file fresh suit. Ext.P9 is the copy of that order. Impeaching the propriety and correctness of P9 order, petitioners have filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. W.P.(C).No.18386 of 2009 - O 2 3. Having regard to the submissions made and taking note of the facts and circumstances presented, I find P9 order cannot be sustained. First and foremost, so far as the withdrawal of the suit is concerned, no permission from the court is necessary. If on the same cause of action the plaintiff wants to file a fresh suit then liberty to file a fresh suit arises for consideration by the court on an application moved under Order XXIII Rule 1(3) CPC. Court below has proceeded with the matter as if formal defect preventing the plaintiff from getting the decree sought for alone arises for consideration. In an in the application seeking permission with liberty to file a fresh suit on the same cause of action the rule contemplates not only formal defect but also whether sufficient cause exists for the grant of such permission. In the present case, petitioners has canvassed a case that the plaint property is having an extent of 3 acres and 34 cents. The commissioner has identified the plaint property as having an extent of 6 acres 68 cents with different boundaries also. That was noticed at a later stage is the further case of the petitioners, which they canvassed as a formal defect disentitling W.P.(C).No.18386 of 2009 - O 3 them from getting the decree sought for. Without adverting to the cause shown by the petitioners, the court below entered a finding that there was no formal defect. The circumstances canvassed by the petitioners, at least make out a case that they had sufficient cause to seek permission for filing a fresh suit on the same cause of cation. The application moved by the petitioner for seeking permission to withdraw the suit with liberty to file fresh suit is allowed. Ext.P10 order of the court below shall also stand set aside. The writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-