The Kerala High Court dismissed a writ petition challenging an order granting an appellant liberty to file a fresh suit for recovery of possession after dismissal of an injunction suit, holding no need for judicial interference.
Writ petition dismissed. Ext. P2 order excluded from interference.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930
WP(C).No. 15304 of 2007(V)
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AS.62/2005 of SUB COURT,KATTAPPANA IN O.S.234/03 AND O.S.66/2005 OF MUNSIFF COURT,PEERMADE)
PETITIONER:
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M.S.THANKAPPAN, S/O.SANTHANAM, MANTHARAM HOUSE, THEKKADY KARA, KUMILY VILLAGE.
BY ADV. SRI.ASOK M.CHERIAN SRI.K.R.VINOD
RESPONDENTS:
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1. SULOCHANAKUMARI, W/O.C.SEBASTIAN, SAUPARNIKAYIL HOUSE, THEKKADY KARA, KUMILY VILLAGE.
2. P.D.RAMAKRISHNAPILLAI, W/O.N. DAMODARAPILLAI, USHASSU HOUSE, THEKKADY KARA, KUMILY VILLAGE.
ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.RAJAN VELLOTH FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.A.S.SABU FOR R1 SRI.A.G.GIRISH KUMAR FOR R1 SRI.V.SANJEEV FOR R1
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss
WPC.NO.15304/2007 V
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE COMMON JUDGMENT DTD. 30/06/2005 IN O.S.NO.234/03 AND O.S.66/05 OF THE MUNSIFF'S COURT, PEERMADE.
EXT.P2: COPY OF THE COMMON ORDER DTD. 29/11/2007 OF THE SUB COURT, KATTAPPANA.
RESPONDENT'S EXHIBITS: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
M. SASIDHARAN NAMBIAR, J.
W.P(C). NO. 15304 OF 2007
Dated this the 1st day of July, 2008
JUDGMENT
Petitioner is the defendant in O.S. 66 of 2005, who is also the second defendant in O.S. 234 of 2003 on the file of Munsiff Court, Peermade. Both the suits were for injunction and tried jointly. First respondent is the plaintiff in both the suits. After trial, both suits were dismissed. In O.S. 66 of 2005 petitioner sought a decree restraining first respondent/plaintiff from trespassing into the plaint schedule property. A decree was granted in his favour. First respondent challenged the dismissal of the suit including the counter claim granted in favour of petitioner in 66 of 2005 before Sub Court, Kattappana in A.S. 61 of 2005 and 62 of 2005. When the appeals were pending, first respondent filed I.A. 1249 of 2006 in A.S. 61 of 2005 and I.A. 1250 of 2006 in A.S. 62 of 2005 under Sub Rule (3) of Rule (1) of Order XXIII of the Code of Civil Procedure to withdraw both the suits. Under Ext.P2 order learned Sub Judge allowed the applications and permitted first respondent to withdraw O.S. 234 of 2003 and O.S. 66 of 2005 with liberty to
WPC15304/2007 2
file fresh suits on the same cause of action. This petition is filed under Article 227 of Constitution of India challenging Ext.P2 order.
115) which was relied on by the Apex Court in Bhoopathi’s case (supra) argued that the permission sought to withdraw the suit at the appellate stage is to be denied only if the effect would be nullifying the finding in favour of the defendants and when the
WPC15304/2007 3
findings in the counter claim were not nullified, petitioner cannot have any grievance and therefore the writ petition is only to be dismissed.
WPC15304/2007 4
injunction instead of decree for recovery of possession. In law a dismissal of the suit filed by plaintiff for injunction simplicitor by itself will not disentitle him from instituting another suit for recovery of possession on the strength of title. Therefore even without any liberty sought for or granted, plaintiff who could not succeed in getting a decree for injunction will definitely be entitled to institute a suit for recovery of possession on the strength of title, so long as there is no finding against him on the question of title in the suit for injunction.
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WPC15304/2007
permission sought for by the plaintiff is to institute a fresh suit for recovery of possession contending that he was advised that he should have sought a decree for recovery of possession. In such circumstances I do not find it is necessary in the interest of justice to interfere with Ext.P2 order invoking the powers under Article 227 of Constitution of India.
Writ petition is dismissed.
M. SASIDHARAN NAMBIAR, JUDGE
Okb/-
2 issues framed by the court
Whether the High Court should exercise writ jurisdiction under Article 227 to set aside the lower court's grant of liberty to file a fresh suit for recovery of possession.
Whether dismissal of an injunction suit disentitles the plaintiff from instituting a subsequent suit based on title for recovery of possession.
Colour shows how this judgement treated each authority
3 provisions across 2 enactments
M.S.THANKAPPAN
SULOCHANAKUMARI
P.D.RAMAKRISHNAPILLAI
M.SASIDHARAN NAMBIAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
