**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH**
**TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933**
**OP(C).No. 3155 of 2011(O)**
**-------------------------**
**I.A.NO.1237/2011 IN OS.310/2011 of MUNSIFF COURT, THALIPARAMBA**
**....................**
**PETITIONER:**
- **---------------------**
**1. OLIYANTAKATH MUHAMMADKUNHI,**
- **S/O.MOIDEENKUTTY, AGED 45 YEARS,**
**2. T.P.HAMSA, HUSBAND OF OLIYANTAKATH KUNHAYISHA, AGED 55 YEARS,**
**BOTH ARE RESIDING AT VATTAKKOOL, CHERIYOOR OF KUTTIYERI VILLAGE, KANNUR DISTRICT.**
**BY ADV. SRI.MAHESH V RAMAKRISHNAN**
## **RESPONDENT(S):**
- **----------------------------**
**1. ALAKKAL PUTHIYA VEETTIL KADAMBOOR VALSAN, S/O.CHANDRAMATHI, AGED 35 YEARS, CHAPPARAPPADAVU, KOOVERI - 670 138.**
**2. OLIYANTAKATH KUNHAYISHA,**
- **D/O.MOIDEENKUTTY, AGED 50 YEARS.**
**3. OLIYANTAKATH KUNHIMARIYAM,**
- **D/O.MOIDEENKUTTY, AGED 43 YEARS.**
## **4. OLIYANTAKATH KHADEEJA,**
**D/O.MOIDEENKUTTY, AGED 41 YEARS.**
## **5. OLIYANTAKATH ABDULLA, D/O.MOIDEENKUTTY,**
**RESPONDENTS NOS.2 TO 5 RESIDING AT VATTAKKOOL, CHERIYOOR, KUTTIYERI VILLAGE, KANNUR DISTRICT.**
**6. THAITHAYAL RAGHAVAN, S/O.KANNAN, AGED 53 YEARS, SREEMANYAMANGALAM, PALLIVAYAL PO. 670 142.**
**THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Kss**
## **OPC.NO.3155/2011 O**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT-P1. TRUE COPY OF THE PLAINT DATED 02.07.2002 IN O.S.NO.310 OF 2002. EXHIBIT-P2. TRUE COPY OF THE WRITTEN STATEMENT FILED IN DECEMBER 2002 BY THE DEFENDANTS 1 TO 6 IN O.S.NO.310 OF 2002. EXHIBIT-P3. TRUE COPY OF THE JUDGMENT DATED 06.01.2010 IN O.S.NO.310 OF 2002 ON THE FILE OF THE MUNSIFF COURT, TALIPARAMBA.**
**EXHIBIT-P4. TRUE COPY OF THE AFFIDAVIT DATED 04.06.2011 FILED IN SUPPORT OF I.A.NO.1237 OF 2011 BY THE PLAINTIFF. EXHIBIT-P5. TRUE COPY OF THE COUNTER STATEMENT DATED 7.6.2011 FILED BY THE DEFENDANTS 1 TO 6 IN I.A.NO.1237 OF 2011. EXHIBIT-P6. TRUE COPY OF THE ORDER DATED 03.08.2011 OF THE MUNSIFF COURT, TALIPARAMBA IN I.A.NO.1237/2011 IN O.S.NO.310/2002. EXHIBIT-P7. TRUE COPY OF THE JUDGMENT DATED 03.08.2011 IN O.S.NO.310/2002 OF MUNSIFF COURT, TALIPARAMBA. EXHIBIT-P8. TRUE COPY OF THE DECREE DATED 03.08.2011 IN O.S.NO.310/2002 OF MUNSIFF COURT, TALIPARAMBA.**
**RESPONDENT'S EXHIBITS: N I L**
**/TRUE COPY/**
**P.S.TO JUDGE**
**Kss**
## **THOMAS P.JOSEPH, J.**
**==================================== O.P(C) No.3155 of 2011 ==================================== Dated this the 18[th] day of October, 2011**
## **J U D G M E N T**
Petitioners are defendants 1 and 2 in O.S. No.310 of 2011 of the court of learned Munsiff, Taliparamba. That is a suit filed by the first respondent for a decree for prohibitory injunction in respect of plaint A and B schedule properties, petitioner and other defendants interfering with his possession and enjoyment and against commission of waste. Petitioner and other contesting defendants disputed the claim of first respondent regarding title and possession and contended that their predecessor-in-interest has been in possession of the suit property which formed part of a total extent of 3.12 acres for the last 46 years and that they have obtained purchase certificate in S.M.P. No.637 of 1995. Petitioners also disputed description of the property as also its identity. Suit remained on the file of learned Munsiff for quite some time. In the meantime the Advocate Commissioner inspected property and submitted report and plan. Once the suit was dismissed for default and later, restored to file. Challenging the purchase
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certificate granted in favour of petitioners in S.M.P. No.637 of 1995, first respondent filed appeal before the Appellate Authority. First respondent also filed application to withdraw the suit with liberty to file fresh suit. That application was resisted by petitioners on various grounds. Learned Munsiff by Ext.P6, order allowed the application notwithstanding the lapse of time having regard to the facts and circumstances of the case which is under challenge in this proceeding.
2. Learned counsel for petitioners contends that there was no 'formal defect' or any other sufficient ground justifying withdrawal of the suit under Rule 1(3) of Order XXIII of the Code of Civil Procedure (for short, “the Code”). It is also contended by learned counsel that in a suit merely for prohibitory injunction what the court is concerned is only possession of property and hence the mere fact that petitioners and other contesting defendants had obtained purchase certificate was not by itself a sufficient ground for first respondent to seek withdrawal of the suit. It is contended that the fact that suit remained on the file of learned Munsiff for about 10 years was not taken serious note of. Learned counsel has placed reliance on the decision in **V.Narayanappa v. Narayanappa** (AIR 1971 Mysore 334,
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**K.S.Bhoopathy v. Kokila** ([2000] 5 SCC 458) and **Thimmaiah v. Shabira** ([2008] 4 SCC 182).
3. There could be no doubt that Rule 1(3) of Order XXIII of the Code gives power to the court to allow an application to withdraw the suit with liberty to file fresh suit of course, in the circumstances falling in clauses (a) and (b) of Rule 1(3). Sub clause (a) deals with possibility of a suit failing on account of a 'formal defect' while sub clause (b) says that withdrawal could be allowed when there are sufficient grounds to allow plaintiff to institute a fresh suit on the subject matter of the suit or part of a claim. Referring to sub clause (b) in **Prabhavathi v. Kunhathabi Umma** (1981 KLT 438) this Court held that sub clause (b) of Rule 1(3) of Order XXIII of the Code is not controlled by sub clause (a).
4. **V.Narayanappa v. Narayanappa** was a case where application for amendment of plaint was rejected by the trial court and thereafter there was a request to withdraw the suit which was not permitted. In **K.S.Bhoopathy v. Kokila's case** in paragraph 7 it is observed that in the application for withdrawal inter alia it was contended that no prayer for declaration of the plaintiff's title over the pathway was made in the plaint and in
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view of the cloud raised against title and right of user, it was necessary to withdraw the suit and file a fresh suit properly constituted seeking appropriate relief. That was found to be not sufficient to permit withdrawal of the suit, that too, at a time when the plaintiff had suffered a dismissal of the suit at the hands of trial court. In **Thimmaiah v. Shabira's case** Sections 37(2) and 38 of the Specific Relief Act are referred to. There it is held that if the plaintiff is not in possession of the property he is not entitled to the relief without claiming recovery of possession.
5. In the present case it is true that there is no prayer for declaration of title and suit is merely for prohibitory injunction where the issue for decision is possession claimed by the first respondent. But it is not disputed that as per the claim made by petitioners and other defendants, the suit property formed part of 3.12 acres which petitioners and other defendants claimed, their predecessor-in-interest was in possession for the last 46 years and that in respect of the said 3.12 acres petitioners have obtained purchase certificate in S.M.P. No.637 of 1995 by the order of the Land Tribunal. In the said proceeding petitioner and other defendants have been found to be cultivating tenants of 3.12 acres of which suit property forms part of. I am inclined to
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think that a cultivating tenant is a person who is in actual possession and enjoyment of the property. Therefore when petitioners and other contesting defendants claim to be in possession and rely on the purchase certificate issued by the Land Tribunal in S.M.P. No.637 of 1995, that is a matter which the first respondent has to answer. Useful reference can be made to
the decision in **Lakhsmi v. Viswanathan** (1999 [2] KLT 621) where it is held that when purchase certificate is issued under Section 72K(2) of the Kerala Land Reforms Act, 1964 to a tenant, he has to be considered as the person in possession of the property. Therefore it is idle for petitioners to contend that the suit being merely for injunction, question of possession alone is to be decided and hence first respondent must have proceeded with the suit notwithstanding the claim of petitioners and other contesting defendants that their predecessor-in-interest was the cultivating tenant of the suit property and that they have obtained purchase certificate in their favour in respect of the suit property as well.
6. It is in view of the claim of petitioners and other defendants regarding the issue of purchase certificate that first respondent challenged the issue of purchase certificate in A.A
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(L.R.) No.26 of 2011 before the Appellate Authority (L.R.), Kannur. Concededly that appeal is pending. In that view of the matter first respondent thought it fit to challenge the order issuing purchase certificate to the petitioners and thereafter file a fresh suit.
7. In the light of what I have stated above I am inclined to think that the situation aforesaid is a sufficient ground for first respondent to seek withdrawal of the suit with liberty to file a fresh suit.
8. No doubt, it was quite long after the institution of the suit that the suit was sought to be withdrawn and learned Munsiff acceded to that request. But I must bear in mind that learned Munsiff had not decided the suit so that a decision in favour of petitioners and contesting defendants was sought to be upset by withdrawing the suit.
9. Having gone through the order under challenge I am not inclined to think that merely for the long time during which suit was pending in the given circumstances of the case, learned Munsiff was wrong in granting permission to the first respondent withdraw the suit and file a fresh suit. I do not find any infirmity in the order under challenge which requires interference under
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Article 227 of the Constitution.
Original Petition is dismissed.
## **THOMAS P. JOSEPH, JUDGE.**
vsv
