Vijayakumar Chandirathil (Parayakadavil) and others v. Babu Abraham Chandirathil (Parayakadavil)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 16[TH] DAY OF NOVEMBER 2023 / 25TH KARTHIKA,** ## **1945** ## **CRP NO. 459 OF 2017** **AGAINST THE ORDER/JUDGMENT AS 15/2016 OF SUB COURT,** ## **CHENGANNUR** ## **REVISION PETITIONER/S:** - 1 VIJAYAKUMAR CHANDIRATHIL(PARAYAKADAVIL),KOLADATHUSSERI MURI,THIRUVANVANDOOR VILLAGE,CHENGANNUR TALUK,ALAPPUZHA DISTRICT. - 2 RAVEENDRAKUMAR CHANDIRATHIOL(PARAYAKADAVIL),KOLADATHUSSERI MURI,THIRUVANVANDOOR VILLAGE,CHENGANNUR TALUK,ALAPPUZHA DISTRICT. - 3 RAJA MALLIKA PARAYAKADAVIL,KOLADATHUSSERI MURI,THIRUVANVANDOOR VILLAGE,CHENGANNUR TALUK,ALAPPUZHA DISTRICT. - 4 SUDHA SHAJI CHANDIRATHIL(PARAYAKADAVIL),KOLADATHUSSERI MURI,THIRUVANVANDOOR VILLAGE,CHENGANNUR TALUK,ALAPPUZHA DISTRICT. BY ADV SRI.V.PHILIP MATHEW ## **RESPONDENT/S:** BABU ABRAHAM CHANDIRATHIL(PARAYAKADAVIL),KOLADATHUSSERI MURI,THIRUVANVANDOOR VILLAGE,CHENGANNUR TALUK,ALAPPUZHA DISTRICT-688001. BY ADV SRI.N.ASHOK KUMAR ## **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRP No.459 of 2017 -2- ## **ORDER** Dated this the 16[th] day of November, 2023 Revision petitioners were the respondents in A.S.No.15 of 2016 of the Sub Court, Chengannur. That appeal was filed by the respondent herein challenging the judgment dismissing his suit; OS No.312 of 2010 filed before the Munsiff Court, Chengannur. The suit was filed for a permanent prohibitory injunction, restraining the petitioners/defendants from trespassing into the plaint schedule property. In the suit, the respondent claimed that he is in ownership and possession of 7.50 cents of land with a building therein and that his predecessor-in-interest has constructed a latrine and bathroom on the northwestern portion of the property. The respondent alleged that the revision petitioners, who are having property on the north-western side, laid a CRP No.459 of 2017 -3- boundary stone and attempted to trespass into his property. The revision petitioners filed written statement denying the allegation and claimed to be in possession of the property covered by ReSy.No.240/1, which also takes in the small extent claimed by the respondent. The trial court dismissed the respondent's suit finding that the disputed portion, identified by the Advocate Commissioner as 16 sq.mtres in Sy.No.240/1 was not correctly described or scheduled in the plaint. The respondent had preferred the appeal aggrieved by that judgment. 2. After filing the appeal, the respondent preferred a fresh suit; OS.No.157 of 2017 before the Munsiff Court and thereafter, made an application under Order XXIII Rule 3 (a) and (b) of the Code of Civil Procedure before the appellate court, seeking leave of the court to withdraw the suit; O.S.No.312 of 2010 with liberty to institute a fresh suit. In spite of CRP No.459 of 2017 -4- the objection raised by the revision petitioners, the appellate court allowed the petition for withdrawal on terms. Aggrieved, this civil revision petition is filed. 3. Learned Counsel for the revision petitioners contended that the impugned order is _per se_ illegal, insofar as the appellate court is not vested with the power to permit withdrawal of a plaint/suit, which is finally decided and against the decree in which, the appeal is filed. It is contended that even in cases which permission can be sought, the petition seeking withdrawal should be filed prior to the institution of the second suit, whereas in the instant case, the petition was filed after the subsequent suit was instituted. In support of this contention, reliance is placed on the decisions of the Apex Court in _**R. Rathinavel**_ _**Chettiar and Another v. V. Sivaraman and Others**_ CRP No.459 of 2017 -5- ## _**[(1999) 4 SCC 89]**_ and _**Sneh Gupta v. Devi Sarup and Others [(2009) 6 SCC 194]**_ . 4. Learned Counsel for the respondent contended that there is no embargo in withdrawing the suit after filing an appeal. According to the learned Counsel, neither is any prejudice caused nor any right vested on the respondent is taken away by the first suit being permitted to be withdrawn. It is contended that the legal position is no longer _res integra_ in the light of the decision of the Apex Court in _**V.Rajendran**_ ## _**and Another v. Annasamy Pandian (Dead) Through**_ ## _**Legal Representatives Karthyayani Natchiar**_ _**[(2017) 5 SCC 63]**_ . It is submitted that in the first suit, due to a mistake in drafting, the extend of 16 sq.metres comprised in Sy.No.240/1 was not scheduled and no prayer for recovery of possession was made. The court below had granted leave to withdraw the suit on being convinced CRP No.459 of 2017 -6- that the omission amounted to a formal defect. Moreover, the first suit was only for injunction, whereas the second suit is for declaration and injunction. 5. The contention that permission for withdrawing the suit cannot be granted by the appellate court is liable to be rejected, the appeal being a continuation of the suit. Even in _**R. Rathinavel Chettiar** (supra)_ cited by the learned Counsel for the revision petitioners, all that the Apex Court has said is that withdrawal of suit by the plaintiff at the appellate stage cannot be allowed by court as a matter of course, when, by virtue of such withdrawal the vested or substantive rights of any party to the litigation will be adversely affected. In _**Sneh Gupta** (supra)_ also, the above legal position has reiterated and it is further held that permission to withdraw the suit after passing of decree, i.e, at CRP No.459 of 2017 -7- appellate stage could be given only with notice to those who derived the benefits under the judgment and decree passed in the suit. In the case at hand, the order under challenge was passed after hearing the revision petitioners and on being convinced that the earlier suit suffered a formal defect. The power of the court to grant permission in such cases is discussed in ## _**V.Rajendran and Another** (supra)_ . 6. The contention that the court below could not have granted permission for withdrawal of the first suit after the second suit was filed since it would take away the prohibition under Order II Rule 2 and Section 11 of the Code cannot also be countenanced since the question whether withdrawal of the earlier suit after institution of the second suit would take away the prohibition under Order II Rule 2 and Section 11 can even now be canvassed before the court in CRP No.459 of 2017 -8- which the second suit is pending. As far as the application for withdrawal is concerned, the consideration of the court below is confined to whether the earlier suit suffered from formal defect. That exercise having been undertaken by the appellate court, I find no reason to interfere with the impugned order. In the result, the civil revision petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/