C.R.P. No.248 of 2014 (C)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939 **CRP.No. 248 of 2014** AGAINST THE ORDER OF THE SUB COURT, KOYILANDY IN I.A.NO.1452/2013 IN A.S.NO.27/2012 ## REVISION PETITIONERS/SUPPL. RESPONDENTS 2 TO 4: LRS OF PLAINTIFF: - 1 SARALA, W/O.PADMANABHAN NAMBIAR, AGED 60 YEARS, PALOLY HOUSE, THIRUVALLOOR AMSOM, THOTANNOOR DESOM, VADAKARA TALUK, KOZHIKODE. - 2 NIRMALA, W/O.SASIDHARAN, AGED 56 YEARS, THARAMBATH HOUSE, CHERUVANNOOR VILLAGE, AVALA DESOM, KOYILANDY TALUK, KOZHIKODE - 3 SALEENA, W/O.LATE SREEDHARAN NAIR, AGED 52 YEARS, VIKKARANKANDY HOUSE, MENHANNIAM AMSOM, PERAMBRA, KOZHIKODE. BY ADVS.SRI.V.V.ASOKAN (SR.) SRI.K.I.MAYANKUTTY MATHER SRI.ARUN KUMAR.P RESPONDENTS/PETITIONERS/DEFENDANTS:: 1. E.C. GANGADHARAN NAMBIAR S/O.SANKARA KURUP, AGED 76 YEARS, VADAKKE KANDIYIL HOUSE,AVALA AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE-673 524. 2. E C SREEDHRAN NAMBIAR - S/O.SANKARA KURUP, AGED ABOUT 80 YEARS, PALLIKKAMANNIL HOUSE, PARAMPARYA VYDIAR, AVALA AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE-673 524. ## R1 BY ADV. SRI.B.KRISHNAN ## R1 BY ADV. SRI.R.PARTHASARATHY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.718/2014 IN C.R.P.NO.248/2014** CLOSED 23/02/2018 SD/- **P.SOMARAJAN, JUDGE** ## //TRUE COPY// AHZ/ ## **P.Somarajan, J. -----------------------------------------------------C.R.P. No.248 of 2014 (C) -----------------------------------------------------Dated this the 23[rd] day of February, 2018** ## **O R D E R** Against the judgment of the Sub Court, Koyilandy in A.S.No.27 of 2012 and the order in I.A.No.1452 of 2013 in A.S.No.27 of 2012, dated 4.1.2014, supplemental respondents 2 to 4/legal representatives of the plaintiff came up with this Revision. 2. A suit for permanent prohibitory injunction was filed by the plaintiff. The defendants entered appearance and, in answer to the claim raised by the plaintiff, a written statement was filed raising a counter claim inclusive of a prayer for recovery of possession and the right to light lamp in the temple property and also claimed co-ownership right over the property. The suit was decreed and the counter claim was dismissed by the trial court against which an appeal was preferred by the defendants. At the appellate stage, the ## **C.R.P. No.248 of 2014 (C)** :: 2 :: defendants sought permission to withdraw the counter claim by filing an application, I.A.No.1452 of 2013. The Appellate Court, on receipt of the application, pronounced the judgment in the appeal dismissing the appeal filed by the defendants in so far as the decree of injunction granted in favour of the plaintiff and permitted to withdraw the counter claim by allowing the application, I.A.No.1452 of 2013, by common order and judgment dated 4.1.2014. Aggrieved by the order allowing I.A.No.1452 of 2013, the supplemental respondents 2 to 4/legal representatives of the plaintiff came up with this Revision. 3. This Court had an occasion to consider the question of permissibility to withdraw a suit/counter claim after suffering a decree in **Mary Teacher and others v. K.J.Varghese and another (2017(1) KLT 840:2017(1) KHC 830: ILR 2017(2)** **Kerala 59)** and settled the legal position, which is extracted below for reference: :: 3 :: ## **C.R.P. No.248 of 2014 (C)** _“6. Then the question is what should be the approach of the court in dealing with an application for withdrawal of suit. There is lot of difference in the legal position applicable to withdrawal of suit at the pre-decree stage and post-decree stage. At the pre-decree stage the plaintiffs are at liberty to withdraw the suit or abandon the suit either partly or in whole except in a suit which would fall under either Order I Rule 8 CPC or Order XXXII Rules 1 to 14 CPC and the court has nothing to do with that liberty vested with the plaintiffs. But, at the post-decree stage it is fully and completely resting on the legal principles and it cannot be granted on mere asking as in the case of pre-decree stage. At the pre-decree stage, even the permission of the court is not required except in cases which would fall under Order I Rule 8 CPC or Order XXXII Rules 1 to 14 CPC, but the plaintiffs are bound by the limitation embodied under Order XXIII in bringing another suit in respect of the same subject matter. There are restrictions imposed under Order I Rule 8(4) CPC in a representative suit and under the proviso to Order XXIII Rue 1_ **C.R.P. No.248 of 2014 (C)** :: 4 :: _CPC with respect to suits which would fall under Order XXXII Rules 1 to 14 CPC. But, at the postdecree stage the plaintiffs cannot unilaterally withdraw the suit without the permission of the court after suffering a decree. The normal rule is that after suffering a decree the plaintiffs cannot be permitted to withdraw the suit unless there is jurisdictional error or lack of jurisdiction and that the suit ended in dismissal on any of the said ground. Only in case of jurisdictional error and lack of jurisdiction resulting in dismissal of suit, a permission can be granted to withdraw the suit at the post-decree stage. Order XXIII CPC did not make any difference in the approach of court in the matter of withdrawal of suit at the postdecree stage and pre-decree stage. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court, but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the_ ## **C.R.P. No.248 of 2014 (C)** :: 5 :: _Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. But, the question of withdrawal at the post-decree stage is fully and completely resting on the legal principles and not confined only to the mandate under Order XXIII CPC, but really restricts its application at the post-decree stage. The grounds which were available at the post-decree stage hence further stood as restricted by the application of legal principles embodied under Section 11 CPC and Order II Rule 2 CPC. The plaintiffs cannot be permitted to nullify a decree suffered by them by their actions. The only exception to the said general rule is the dismissal of the suit on the ground of lack of jurisdiction or jurisdictional error.”_ 4. In the present case, the defendants who raised the counter claim, had suffered a decree which was challenged in appeal. It is at that stage the present application was filed without disclosing any material defect in the format of the suit or jurisdictional error, if any. Further, the counter claim was ## **C.R.P. No.248 of 2014 (C)** :: 6 :: raised with respect to the very same property, the plaint schedule property, raising a prayer for recovery of possession and also for declaring their right to use and to possess the property. The lower court has granted a decree of permanent prohibitory injunction restraining the defendants from interfering with the peaceful possession of the plaintiff or dealing with its affairs. That itself shows that the issue raised in the suit as well as in the counter claim is one and the same with respect to the very same subject matter, namely, the plaint schedule property. If that be so, the granting of a decree of permanent prohibitory injunction which has attained finality by the dismissal of the appeal by the first appellate court cannot be re-opened and it cannot be nullified or reagitated or re-opened in another proceeding. The order of the Sub Court allowing the application in I.A.No.1452 of 2013 hence deserves interference by this Court. Needless to say that the parties are at their whims and fancies either to withdraw the counter claim or to abandon the same either in the trial stage or in the appellate stage. The only embargo is ## **C.R.P. No.248 of 2014 (C)** :: 7 :: with respect to the right to bring the same matter by way of another proceeding. In the result, the order of the lower court in I.A.No.1452 of 2013 in so far as it grants permission to the defendants to institute a fresh suit on the counter claim is hereby set aside. The Civil Revision Petition is disposed of accordingly. No order as to costs. **P. Somarajan Judge** ahz/