IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 13995 of 2009(O) -------------------------- I.A.NO.1862/07 IN OS.48/2003 of SUB COURT, PALA .................... PETITIONER(S): ------------------------- 1. JOSEPH, S/O. KUIRUVILLA, AGED 74 YEARS, KOKKATTU HOUSE, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. 2. ABRAHAM,KOKKATTU HOUSE, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. BY ADV.MR.M.P.ASHOK KUMAR RESPONDENT(S): --------------------------- 1. MARIAMMA @ OMANA, ERATHEDATHU PURAYIDAM, BHARANANGANAM VILAGE, KOTTAYAM DISTRICT. 2. THRESIAMMA, W/O. JOY, PULIKKUNNEL HOUSE, OLIVIRUPPU KARA, UDUMPANNNOOR VILLAGE,CHEENIKUZHI.P.O., KOTTAYAM DISTRICT. 3. BENNY JOHN, NJONDIMAKKAL HOUSE, EDAMATTOM KARA, POOVARANI VILLAGE, EDAMATTOM.P.O., KOTTAYAM DISTRICT. 4. NIRMALA W/O. BENNY, NJONDIMAKKAL HOUSE, EDAMATTOM KARA, POOVARANI VILLAGE, EDAMATTOM.P.O., KOTTAYAM DISTRICT. * 5. ANIAMMA, KOKKATTU HOUSE, BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT. ( *R5 IS DELETED AS PER ORDER DTD. 5/08/2009) 6. P.J.JOSEPH, PULLATTU HOUSE, MELAMPARA KARA, THALAPPALAM VILLAGE, PLASSANAL.P.O. KOTTAYAM DISTRICT. R1 BY ADVS.MR.C.S.MANILAL, MR.KARJET KODUVATH. R3&R4 BY ADV.MR.M.M.ALIAS BY ADV.MR.S.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.13995 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 5th August, 2009 JUDGMENT Writ Petition is filed seeking the following reliefs: 1. To call for the records leading to Ext.P4 order. 2. Issue a writ of certiorari or other appropriate writ or order quashing Ext.P4. 3. Pass such other orders as this Hon'ble Court may deem fit to grant in the circumstances of the case. 2. Petitioners are the first and second defendants in O.S.No.48 of 2003 on the file of the Sub Court, Pala. Suit was for partition and the first respondent was the plaintiff. Other respondents in the petition were the codefendants with the petitioners in the suit. The first respondent/plaintiff in the light of the contentions raised by the defendants that portions of the suit properties had been assigned in favour of others under registered deeds and they are also necessary parties to the suit, and, so much so, the suit is bad for nonjoinder of such assaignees, moved an application under Order 23 Rule 1 (3) of the C.P.C. to withdraw the suit with permission to file fresh suit. The defendants resisted that application by filing written objections. The learned Sub Judge after considering the application and hearing the W.P.C.No.13995/09 - 2 - counsel on both sides by Ext.P4 order accorded permission to the plaintiff to file a fresh suit on withdrawal of the present suit subject to terms. Propriety and correctness of Ext.P4 order is impeached in the petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P4 order impugned in the Writ Petition, I find no notice to the respondents is necessary and hence it is dispensed with. Learned counsel for the petitioners inviting my attention to some judicial pronouncements contended that the cause shown by the first respondent/plaintiff for withdrawal of the suit with permission to institute a fresh suit for the same relief will not come under formal defects on account of which the suit already instituted must fail. In the written statement filed by the defendants much earlier, the suit claim was resisted disputing the entitlement of the plaintiff to have any portion of the suit property and among other contentions the alienation made in favour of the strangers by registered deeds was also specifically stated. The application giving rise to P4 order was filed seeking withdrawal of the suit with W.P.C.No.13995/09 - 3 - permission to file fresh suit, at a belated stage, according to the learned counsel, only to vex and harass the defendants. The case of the plaintiff for partition is based on the joint tenancy over the suit property. So much so, even the dismissal of the present suit for partition otherwise than on merit will not debar her from filing a fresh suit for partition so long as the joint tenancy continues. Whether the plaintiff has partiable right or joint tenancy with the defendants over the holding is a matter to be determined in the suit. Apparently, from the submissions made and the materials produced with the petition, it is evident that the suit is an offshoot pursuant to the decision in Mary Roy's case (1986 KLT 508). Whatever that be, the challenge against the order impugned on the ground that the reasons set out by the first respondent/plaintiff to withdraw the suit with permission to file a fresh suit do not constitute formal defect cannot be given much value for the reason the suit is for partition advancing a case as to the continuance of the joint tenancy over the suit property. Further more, not only formal defects but other “sufficient grounds” also come within the ambit of Order 23 Rule 1(3) of the C.P.C. to seek permission for institution of a fresh suit on withdrawal of the suit already instituted. Having regard to the reasons set out by the W.P.C.No.13995/09 - 4 - plaintiff seeking permission, the impleadment of the assignees in whose favour portions of the suit property had been transferred, I find the learned Sub Judge was fully justified in according permission to the plaintiff to institute a fresh suit impleading the assignees. I find Ext.P4 order passed by the learned Sub Judge is proper, valid and correct. The learned Sub Judge has accorded permission only on terms directing the plaintiff to pay a sum of Rs.3000/- each to the contesting defendants compensating whatever injuries suffered by them for instituting a fresh suit for partition. Writ Petition lacks merit and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE