IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 CRP.No. 664 of 2008() -------------------------------- AGAINST THE ORDER DATED 18/08/2008 IN IA 1686/2008 IN OS.218/2004 of MUNSIFF COURT, CHITTUR .................... REVN. PETITIONER: RESPONDENTS/DEFENDANTS: ----------------------------- 1. PREMALATHA, W/O.CHANDRAN, AGED 46 YEARS, RESIDING AT PULIKAL CHANDHATHODE, THEKKEGRAMAM, CHITTOR TALUK. 2. CHANDRAN, POLICE CONSTABLE, AGED 46 YEARS, RESIDING AT PULIKAL CHANDHATHODE, THEKKEGRAMAM, CHITTOR TALUK. 3. RANI, W/O.RAMADAS, AGED ABOUT 35 YEARS, RESIDING AT ALACHANCODE, CHITTUR VILLAGE, CHITTUR TALUK. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENTS: PETITIONER/PLAINTIFF: ------------------------- RAJAN, S/O.CHERUKUTTY, AGED 74 YEARS, RESIDING AT PATHIYODE HOUSE, THEKKEGRAMAM, CHITTUR TALUK. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. NO. 664 OF 2008 ------------------------------------------ Dated this the 29th day of August, 2008 O R D E R Petitioners are the defendants and respondent the plaintiff in O.S.218 of 2004. Respondent plaintiff filed I.A.1686 of 2008 under sub rule (3) Rule 1 of Order XXIII of Code of Civil Procedure for permission to withdraw the suit with liberty to file fresh suit on the same cause of action. As per order dated 18.8.2008, learned Munsiff granted the permission on payment of cost of Rs.3,000/-. This petition is filed under Section 115 of Code of Civil Procedure challenging the order. 2. Learned counsel appearing for petitioners was heard. 3. The argument of the learned counsel appearing for petitioners is that though suit was originally one of injunction, plaint was subsequently amended, and a plea on right of easement of necessity was added and subsequently petition for amendment of the plaint incorporating right of easement by grant was filed and its arguments were heard and it is thereafter I.A.1686 of 2008 is filed to withdraw the suit, when it is clear CRP664/08 2 that respondent will not get a relief in the suit and dismissal of the suit cannot be avoided by filing an application to withdraw the suit with liberty to file a fresh suit. Learned counsel argued that a commission was appointed and time and expenses were spent and in such circumstance learned Munsiff was not justified in allowing the application especially when the plaint was amended once and another petition as well as petition for violation of injunction under Rule 2A of Order XXXIX and police protection were heard by the Munsiff. 4. Under the impugned order, learned Munsiff granted permission to withdraw the suit finding that petitioner is not to be granted liberty to seek a comprehensive relief in the suit. On hearing the learned counsel and going through the impugned order, I do not find any illegality or irregularity warranting interference. Petitioner is claiming a right of way. But no decree for declaration was sought. Suit is only for injunction. Originally suit was filed for injunction without specifying the right of easement claimed. Subsequently plaint was amended claiming a right of easement by necessity. Thereafter another petition was filed claiming right of way by easement of grant. That petition is pending. It is in such circumstance petitioner CRP664/08 3 sought permission to withdraw the suit. When a right of way is claimed, it is better that a suit for declaration of right of way itself is instituted specifying the right of easement. In such circumstances, I do not find any illegality or irregularity in the impugned order passed by learned Munsiff when cost of Rs.3000/- was also awarded. Writ petition is dismissed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-