IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 OP(C).NO. 734 OF 2010(O) ------------------------------------- AS.22/2009 OF DIST & SESSIONS COURT, ALAPPUZHA OS.772/2007 OF PRINCIPAL MUNSIFF,ALAPPUZHA .................... PETITIONER: -------------------- JOSEPH CHERIYAN, S/O.CHERIAN, AGED 83 YEARS, KAITHAVANATHARA HOUSE, CHENNAMKARY, KAINAKARY EAST PO, ALAPPUZHA DISTRICT 688 501. BY ADV. SRI.ANIL K.NARENDRAN SRI.S.MURUGAN RESPONDENT(S): ------------------------- THOMAS JACOB S/O.CHACKO JACOB, AGED 65 YEARS, KOYITHARA PUTHENPURAYIL CHENNAMKARY, KAINAKARY EAST PO,ALAPPUZHA DISTRICT-688 501. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.734 of 2010 ==================================== Dated this the 16th day of November, 2010 J U D G M E N T Defendant in O.S. No.772 of 2007 of the court of learned Principal Munsiff, Alappuzha and respondent in A.S. No.22 of 2009 of the court of learned District Judge, Alappuzha is the petitioner before me. Respondent-plaintiff filed the suit for prohibitory injunction against petitioner allegedly trespassing into the suit property and committing waste. Vide Ext.P2, judgment learned Munsiff dismissed the suit. Respondent challenged that judgment and decree in A.S. No.22 of 2009 and when the appeal was pending respondent filed application under Order XXIII Rule 1(3) of the Code of Civil Procedure (for short, the “the Code”) seeking permission to withdraw the suit with liberty to file a fresh suit. That was objected by the petitioner on the ground that there is no formal defect enabling respondent to withdraw the suit. Learned District Judge vide Ext.P6, order dated July 13, 2010 allowed the application on costs (I am told that since petitioner did not receive the costs it was deposited in court). Pursuant to Ext.P6, order O.P(C) No.734 of 2010 -: 2 :- respondent filed O.S. No.701 of 2010 in the court of learned Munsiff, Alappuzha (Ext.P7 is the copy of plaint). Challenge in this petition is against Ext.P6, order dated July 13, 2010 allowing withdrawal of O.S. No.772 of 2007. Learned counsel contends that withdrawal of the suit is bad in law since there was no formal defect for the suit, withdrawal has the effect of nullifying findings entered by the trial court in favour of petitioner which cannot be permitted and that in O.S. No.701 of 2010 relief sought and cause of action pleaded are different and hence cannot be said to be a suit filed pursuant to the withdrawal of O.S. No.772 of 2007. 2. So far as the objection that O.S. No.701 of 2010 is not in respect of the same cause of action or seeking same relief asked for in O.S. No.772 of 2007 is concerned that is not a matter which is required to be considered in this petition in challenge of Ext.P6, order and appropriate objection in that line if available to the petitioner and if relevant can be raised in O.S. No.701 of 2010. I leave that matter there. 3. So far as Ext.P6, order is concerned it is not as if appellate court has no power to permit withdrawal of appeal and the suit. Binding decisions on the point say that appellate court can permit withdrawal of appeal and suit if it does not have the effect of taking away accrued rights or nullifying findings entered O.P(C) No.734 of 2010 -: 3 :- in favour of opposite party and it does not work out injustice to the opposite party. In the present case appellate court was satisfied in the circumstances of the case that permission could be granted to the respondent to withdraw the appeal and the suit on terms. Exhibit P6, order to that effect was passed on July 13, 2010 and as seen from Ext.P6, order, that document was delivered to the petitioner on 02.08.20120. But this petition is filed only on 15.11.2010. In the meantime respondent instituted O.S. No.701 of 2010. In the circumstances I do not consider it necessary to invoke the supervisory power of this Court under Article 227 of the Constitution against Ext.P6, order. Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv