IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 16804 of 2009(O) --------------------------------------- AGAINST THE ORDER DATED 10/02/2009 IN I.A 1000/2009 IN OS.880/2006 of II ADDL. MUNSIFF COURT, ERNAKULAM .................... PETITIONER(S): ---------------------- M/S.AMASCO TOURS AND TRAVELS PVT. LTD., 4TH FLOOR, THOMSUN TOWERS, M.G.ROAD, ERNAKULAM-682 035, REP. BY ITS DIRECTOR, K.V.ABRAHAM, S/O.K.V.VARGHESE, VADAVATHUR P.O., KOTTAYAM-10. BY ADV. MR.SREELAL N.WARRIER MR.JOJI THOMAS RESPONDENT(S): ------------------------ 1. JOY JOSEPH, S/O.JOSEPH, AGED ABOUT 55 YEARS, KOTTUULLIL HOUSE, NEAR AMRUTHA HOSPITAL, PONEKKARA, ELAMAKKARA P.O., KOCHI. 2. AJITH KUMAR, S/O.VELAYUDHAN, AGED ABOUT 35 YEARS, KANNEKADAPARAMBIL HOUSE, PONEVAZHI ROAD, PONEKKARA, ELAMAKKARA P.O. 3. P.A.AZIZ, S/O.ALIYAR, AGED ABOUT 50 YEARS, PALATHINKAL HOUSE, METALBOX ROAD, EDAPPALLY NORTH P.O. 4. RAJAGOPAL, S/O.SREEDHARAN, AGED ABOUT 50 YEARS, KADIPARAMBATH HOUSE, EDAPPALLY, ELAMAKKARA P.O. 5. ANISH, S/O.ABEY, AGED ABOUT 20 YEARS, PUTHOLIPARAMBIL HOUSE, SUBHAS CHANDRA BOSE ROAD, PONEKKARA, ELEMAKKARA P.O. 6. N.A.MANI, S/O.APPACHAN, AGED ABOUT 45 YEARS, NADAKKAPARAMBU HOUSE, PONEKKARA, ELAMAKKARA P.O., KOCHI-26. WP(C).No. 16804 of 2009(O) 7. M.P.MAHESH, S/O.PARAMESWARAN NAIR, AGED ABOUT 36 YEARS, MAKKOMPALLY HOUSE, KUNNUMPURAM, EDAPPALLY NORTH. 8. P.G.JOSEPH, FATHERS NAME NOT KNOWN, AGED ABOUT 50 YEARS, PALLIPARAMBU HOUSE, KUNNUMPURAM, EDAPPALLY NORTH. 9. SURESH BABU, FATHERS NAME NOT KNOWN, AGED ABOUT 40 YEARS, THOTTAPPALLIPARAMBU, KUNNUMPURAM, EDAPPALLY NORTH. R1, R2, & R4 BY ADV. MR.E.J.THOMAS . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16804 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE INTELOCUTORY APPLICATION NO.1000 OF 2009 IN O.S. NO.880 OF 2006 OF 2ND ADDL. MUNSIFF'S COURT, ERNAKULAM. EXT.P2: COPY OF THE COUNTER AFFIDVIT FILED BY THE 1ST RESPONDENT IN I.A. NO.1000 OF 2009 IN O.S. NO.880 OF 2006 OF 2ND ADDL. MUNSIFF'S COURT, ERNAKULM. EXT.P3: COPY OF THE ORDER IN INTELECUTORY APPLICATION NO.1000 OF 2009 IN O.S. NO.880 OF 2006 OF 2ND ADDL. MUNSIFF'S COURT, ERNAKULAM. EXT.P4: COPY OF THE INTELECUTORY APPLICATION NO.1303 OF 2009 IN O.S. NO.880 OF 2006 OF 2ND ADDL. MUNSIFF'S COURT, ERNAKULAM FOR REVIEW OF EXHIBIT P3 ORDER. EXT.P5: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN I.A. NO.1303 OF 2009 IN O.S. NO.880 OF 2006 OF 2ND ADDL. MUNSIFF'S COURT, ERNAKULAM. EXT.P6: COPY OF THE ORDER IN INTELECUTORY APPLICATION NO.1303 OF 2009 IN O.S. NO.880 OF 2006 OF 2ND ADDL. MUNSIFF'S COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.16804 OF 2009 (O) ----------------------------------- Dated this the 30th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following relief: i. to call for the records in O.S.No.880/2006 on the file of the IInd Additional Munsiff's Court, Ernakulam. 2. Petitioner is the plaintiff in O.S.No.880/2006 on the file of the Munsiff Court, Ernakulam. Suit was filed for a decree of permanent prohibitory injunction. After defendants entered appearance and filed their written statement, the plaintiff moved an application under Order XXIII Rule (1) of CPC for withdrawal of the suit with permission to file a fresh suit on the plea that there are some former defects in the plaint and the suit may fail on account of such defects. Ext.P1 is the copy of that application so filed by the plaintiff. The 1st respondent resisted that application contending that the application is not allowable. The learned Munsiff, after hearing the counsel on both sides, dismissed that application. WPC.16804/09 2 Ext.P3 is the copy of that order. Petitioner thereupon moved an application for recalling Ext.P3 order pointing out that withdrawal is the statutory right of the plaintiff, over which the court has no discretion, and the order dismissing the application as a whole is liable to be reviewed. Ext.P4 is the application moved for review of Ext.P3 order. Against the review petition also the 1st respondent filed objections. Ext.P5 is the copy of that objections. The learned Munsiff, after considering the review petition dismissed it by Ext.P6 order. In the writ petition, petitioner challenges the propriety and correctness of Exts.P3 and P6 orders invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Perusing Exts.P3 and P6 orders, it is evident the learned Munsiff has not considered the scope and ambit of Order XXIII Rule 1 (3) of CPC in examining the merit of the application moved by the plaintiff for withdrawal of the suit with liberty to file a fresh suit. So far as the withdrawal of the suit is concerned except when sued in a representative capacity, the plaintiff has got an WPC.16804/09 3 absolute right, and no court can compel him to continue to prosecute his claim or prevent him from abandoning such claim at any stage of the suit. But where permission is sought for to institute a fresh suit after withdrawal of the suit, then, of course the court has to consider whether the cause shown by the plaintiff for seeking such permission deserves merit and consideration. In examining that question, it has to be noted the principle under Order XXIII Rule 1 (3) of CPC is founded on public policy so as to prevent institution of suits one after the another under the same cause of action. So much so, the bar to file a fresh suit will not apply if the plaintiff has got a different cause of action other than the one on which the previous suit was withdrawn with or without liberty of the court. When a plaintiff in a suit for injunction seeks for permission to withdraw the suit and file a fresh suit for the reason that the suit presented is likely to fail on account of some formal defects and also that a fresh suit has to be instituted for a declaratory relief, unless exceptional circumstances disentitle the plaintiff, the normal rule must be to accord such permission to institute a fresh suit since the relief of declaration is entirely dependent upon different cause WPC.16804/09 4 of action from the one for the relief of injunction. So far as injunction is concerned, the legal right to claim that relief is far different from the right for a declaratory relief under Section 34 of the Specific Reliefs Act. To dismiss an application moved by the plaintiff for withdrawal with liberty to institute fresh suit as was done under Ext.P3 order without taking note of the legal principles applicable cannot be sustained. Permission for institution of a fresh suit alone emerged for consideration in the present case and not withdrawal. That should have been considered noticing that the cause of action for a declaratory relief by a fresh suit to be instituted is different from the suit for injunction substituted and sought to be withdrawn. Setting aside Exts.P3 and P6 orders, the court below is directed to examine Ext.P2 application of the plaintiff/petitioner and pass appropriate orders taking note of the observations made above and in accordance with law. Writ petition is disposed accordingly. S.S.SATHEESACHANDRAN JUDGE prp WPC.16804/09 5