# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
```
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
```
```
THURSDAY, THE 16[TH] DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945
OP(C) NO. 2325 OF 2023
IN OS NO.201/2013 OF MUNSIFF’S COURT,VARKALA
```
## **`PETITIONER(S)/PETITIONER/PLAINTIFF:`**
```
KAMALUDEEN, S/O MOHAMMED ISAMIL
AGED 60 YEARS, PLAVILA PUTHEN VEEDU, AYIRAMON VILA,
NAVAIKULAM, KUDAVOOR VILLAGE, THIRUVANANTHAPURAM,
PIN – 695603.
```
```
BY ADVS.
M.R.RAJESH
SANDHYA E.S.
```
## **`RESPONDENT(S)/COUNTER PETITIONER/DEFENDANT:`**
```
SREEDEVI, D/O. KAMALAMMA
SREEVILASOM, AYIRAMON VILA, KUDAVOOR VILLAGE,
THIRUVANANTHAPURAM DISTRICT, PIN – 695603.
```
```
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
```
```
O.P.(C). No.2325 of 2023
```
**==> picture [37 x 9] intentionally omitted <==**
**==> picture [127 x 11] intentionally omitted <==**
## _**`Dated this the 16[th] day of November, 2023`**_
```
Petitioner is the plaintiff in O.S. No.201/2013 of
the Munsiff’s Court, Varkala. He is aggrieved by
Ext.P6 order, as per which, his application to
withdraw the said suit with liberty to file a
fresh one has been dismissed by the learned
Munsiff.
```
```
2.Heard the learned counsel for the petitioner,
who would submit that the suit is sought to be
withdrawn with liberty on account of a formal
defect that the description of plaint C schedule
pathway in the plaint - over which a right of
easement by prescription was claimed - is not
```
```
O.P.(C). No.2325 of 2023
```
**==> picture [37 x 9] intentionally omitted <==**
```
tallying with the findings of the Commissioner in
respect of the said pathway. Contrary to the
pleadings, the Commissioner found that the
southern boundary of plaint B schedule is not the
southern end of a high-lying portion, but the same
is on the northern extremity of a low-lying
portion. Although the plaintiff attempted to clear
the defect by filing an amendment application, the
same was dismissed by the court below. An original
petition carried to this Court challenging the
said dismissal was also unsuccessful. In such
circumstances, the plaintiff is left with no
remedy, but to seek withdrawal of the said suit,
with liberty to file a fresh one. It was
specifically highlighted that the finding of the
learned Munsiff, that the plaintiff is not sure of
the pathway, over which he is claiming easement by
prescription, is absolutely incorrect. The learned
counsel would submit that the plaintiff is fully
```
```
O.P.(C). No.2325 of 2023
```
```
..4..
```
```
sure of the pathway claimed. However, on account
of the findings of the Commissioner that, a small
strip of land, which forms part and parcel of the
pathway claimed, is passing through a low-lying
land, the instant application for withdrawal was
necessitated. Learned counsel relied upon a
judgment of the Hon’ble Supreme Court in Rajendran
V. and Anotherv. Annasamy Pandian (D) Thr. Lrs.
Karthyayani Natchiar[2017 (1) KHC 674], to
canvass that the expression ‘formal defect’ should
be given a liberal meaning.
```
```
3.Having heard the learned counsel appearing for
the petitioner, this Court is not inclined to
allow the instant original petition. This Court,
specifically take note of the findings of the
learned Munsiff in paragraph No.5 of the impugned
order, whereby the learned Munsiff had taken note
of the fact that the Commissioner’s report and
```
```
O.P.(C). No.2325 of 2023
```
```
..5..
```
```
plan [Exts.C3 and C3(a)], were filed before the
court on 12.12.2019 and that the case was listed
for trial only in December, 2020, within which
time no action was taken by the petitioner/
plaintiff. It was only during the course of trial
that the plaintiff sought for an amendment of the
plaint, to make it tally with the findings of the
Commissioner, which was dismissed and the same was
upheld by the High Court. It was also taken note
that the suit was of the year 2013. The learned
Munsiff frowned upon the application preferred
by the petitioner/plaintiff also for the reason
that the plaintiff is not aware of the exact
position of the pathway, thereby meaning the
identity of the pathway, over which he is claiming
prescriptive easement right. A right of
prescriptive easement is not one which has to be
claimed based on the survey plan and that the
plaintiff was not sure whether the pathway was
```
```
O.P.(C). No.2325 of 2023
```
```
..6..
```
```
lying in the high-lying portion of the plaint B
schedule property or on its low-lying portion.
Ultimately, the learned Munsiff found that the
cause espoused by the plaintiff to seek withdrawal
with liberty is not a formal defect and that, it
is something which touches the merits of the
matter. Accordingly, the application was found to
be outside the scope of Order XXIII, Rule 1 and
the same was dismissed.
```
```
4.Having reconsidered the findings of the
learned Munsiff, this Court finds no reason to
interfere with or deviate from the reasons stated
for dismissing the interim application for
withdrawal. As found by the learned Munsiff, the
suit is one for easement by prescription. The very
claim inheres a precise understanding of the
pathway, over which the plaintiff is claiming
right. On the one hand, the plaintiff could have
```
## **`O.P.(C). No.2325 of 2023`**
```
..7..
```
```
maintained that the pathway over which he claims
right is the one scheduled in the plaint. Per
contra, if the plaintiff accedes to the
Commissioner’s finding that a portion of the
pathway is passing through a low-lying area,
forming part of the defendant’s property, the same
may militate against the very claim espoused in
the plaint of having used a definite pathway for
the prescribed period uninterruptedly, peacefully,
as of right and without any let or hindrance. The
legal requirement would only point to a clear and
precise understanding as regards the identity of
the pathway. As rightly found by the learned
Munsiff, the matter is one touching the merits of
case and not fitting into the character of a
‘formal defect’, or for that matter ‘a sufficient
ground’, as envisaged in Order XXIII, Rule 1. As
regards the decision relied upon by the learned
counsel for the petitioner, the findings in
```
```
O.P.(C). No.2325 of 2023
```
```
..8..
```
## **`paragraph No.10 is worth extracting.`**
```
“Paragraph 10. In K. S. Bhoopathy and Others v.
Kokila and Others, 2000 KHC 1202 : 2000 (5) SCC
458 AIR 2000 SC 2132, it has been held that it
is the duty of the Court to be satisfied about
the existence of "formal defect" or "sufficient
grounds" before granting permission to withdraw
the suit with liberty to file a fresh suit under
the same cause of action. Though, liberty may
lie with the plaintiff in a suit to withdraw the
suit at any time after the institution of suit
on establishing the "formal defect" or
"sufficient grounds", such right cannot be
considered to be so absolute as to permit or
encourage abuse of process of Court. The fact
that the plaintiff is entitled to abandon or
withdraw the suit or part of the claim by
itself, is no licence to the plaintiff to claim
or to do so to the detriment of legitimate right
of the defendant. When an application is filed
under Order XXIII R. 1(3) CPC, the Court must be
satisfied about the "formal defect" or
"sufficient grounds". "Formal defect" is a
defect of form prescribed by the Rules of
procedure such as, want of notice under S.80
CPC, improper valuation of the suit,
insufficient court fee, confusion regarding. -
identification of the suit property, mis-
joinder of parties, failure to disclose a cause
of action etc. “Formal Defect” must be given a
liberal meaning which connotes various kinds of
defects not affecting the merits of the plea
raised by either of the parties.”
```
```
5.A reading of the said paragraph would only
give a caution to the court, to which an
application for withdrawal is made, to ensure the
```
```
O.P.(C). No.2325 of 2023
```
```
..9..
```
```
existence of a formal defect or sufficient ground
before granting such permission. The Hon’ble
Supreme Court categorically held that, such right
is not an absolute right to encourage or permit
abuse of process of a court. The right of the
plaintiff to seek withdrawal of the suit under
Order XXIII, Rule 1 is not a license to do things
to the detriment of the legitimate rights of the
defendant. As regards the formal defect, it was
clarified that it is a defect of form, prescribed
by the Rules of Procedure. It is true that among
the various categories of defect, a confusion
regarding identity of the suit property is also
included. This Court is of the opinion that the
identity referred to therein is in respect of the
suit property as a whole, which proposition cannot
be automatically extended in a claim for easement
by prescription, where the requirements, as
referred to in the earlier part of the judgment,
```
```
O.P.(C). No.2325 of 2023
```
**==> picture [45 x 9] intentionally omitted <==**
```
should be of a precise nature and character.
This Court, in exercise of the powers under
Article 227, is not inclined to interfere with the
well reasoned order of the learned Munsiff.
```
```
The original petition will, therefore, stand
dismissed.
```
```
Sd/-
```
```
C. JAYACHANDRAN
JUDGE
```
```
Skk//23.11.2023
```
```
O.P.(C). No.2325 of 2023
```
```
..11..
```
## **`APPENDIX OF OP(C) NO.2325/2023`**
## **`PETITIONER’S EXHIBITS:-`**
```
A TRUE COPY OF THE PLAINT IN O.S. NO.
201/2013 ON THE FILE OF THE MUNSIFF
COURT, VARKALA
```
```
EXHIBIT P1A TRUE COPY OF THE PLAINT IN O.S. NO.
201/2013 ON THE FILE OF THE MUNSIFF
COURT, VARKALA
EXHIBIT P2A TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE DEFENDANT/RESPONDENT
HEREIN TO EXT.P1 PLAINT
```
- `EXHIBIT P3 A TRUE COPY OF THE COMMISSION REPORT AND ROUGH SKETCH DATED 10.06.2013`
- `EXHIBIT P4 A TRUE COPY OF THE I.A. NO. 3/2022 IN O.S. NO. 201/2013 ON THE FILE OF THE MUNSIFF COURT, VARKALA`
```
EXHIBIT P5A TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENT TO EXT.P4 PETITION
EXHIBIT P6A TRUE COPY OF THE ORDER DATED
14.06.2023 IN I.A. NO. 3/2022 IN O.S.
NO. 201/2013 ON THE FILE OF THE MUNSIFF
COURT, VARKALA
```
## **`RESPONDENTS’ EXHIBITS:-`**
```
EXHIBIT R-1(A)TRUE COPY OF THE PLAINT IN O.S. NO.
192/2013 FILED BY THE RESPONDENT BEFORE
THE MUNSIFF COURT, VARKALA
```
```
EXHIBIT R-1(B)TRUE COPY OF THE JUDGMENT DATED
15.3.2022 IN OP(C ) NO. 192/2022 OF
THIS HON'BLE COURT
```
