Vimala Devi & others v. Sivarajan & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932** **WP(C).NO. 9115 OF 2010(O)** **----------------------------------------** **AS.46/2004 OF I ADDL.SUB COURT,TRIVANDRUM** **....................** ## **PETITIONER(S):** - **----------------------** **1. VIMALA DEVI,AGED 60 YEARS, W/O.RAVEENDRAN NAIR,VISHNUKRIPA,KALLUMMOODU, ANAYARA.P.O,KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.** **2. V.R.ANIL KUMAR @ BALAKRISHNAN NAIR,** - **S/O.RAVEENDRAN NAIR,VISHNUKRIPA,KALLUMMOODU, ANAYARA.P.O,KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.** **3. V.R.AJITH KUMAR @ UNNIKRISHNAN NAIR, S/O.RAVEENDRAN NAIR,VISHNUKRIPA,KALLUMMOODU, ANAYARA.P.O,KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.** **4. MOHAN @ CHANDRA MOHAN,S/O.KAMAPALAN, DEVIKRIPA,KALLUMMOODU,ANAYARA.P.O, THIRUVANANTHAPURAM.** **5. SASIKALA,W/O.MOHAN,DEVIKRIPA,KALLUMMOODU ANAYARA.P.O,THIRUVANANTHAPURAM.** **6. MOHAN,S/O.DAMODARAN,MAYAMOHANAM, KALLUMMOODU,ANAYARA.P.O,THIRUVANANTHAPURAM.** **7. SUDHADEVI,W/O.HARIDAS,TC.30/132(1) MAYAMOHANAM,KALLUMMOODU,ANAYARA.P.O, THIRUVANANTHAPURAM.** **8. N.SOMAN,S/O.NARAYANAN,TC.30/232, MAYAMOHANAM,KALLUMMOODU,ANAYARA.P.O, THIRUVANANTHAPURAM.** **BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN** **RESPONDENT(S):** ## **------------------------** **1. SIVARAJAN,S/O.CHELLAPPAN CHITTIYAR, ANAMIKA,KALLUMOODU,ANAYARA.P.O,THIRUVANANTHAPURAM.** **2. VASANTHA,W/O.SIVARAJAN,ANAMIKA, KALLUMOODU,ANAYARA.P.O,THIRUVANANTHAPURAM.** **3. SATHYA,SATHYA BHAVAN,ANAYARA.P.O, THIRUVANANTHAPURAM.** **4. GEETHA,W/O.SATHYAN,SATHYA BHAVAN,** **ANAYARA.P.O,THIRUVANANTHAPURAM.** **ADV. SRI.BINOY VASUDEVAN FOR R3,4 SMT.P.G.BABITHA FOR R3,4 SRI.D.GANESH KUMAR FOR R1 SRI.KAVITHA K.I FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2010 ALONG WITH W.P(C) NO.19929 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX --------------** ## **(W.P(C) NO.9115 OF 2010)** ## **PETITIONER'S EXHIBITS:** **----------------------------------** **EXHIBIT P1 TRUE COPY OF I.A. NO.5331 IN A.S. NO.46 OF 2004 DATED 18.10.2007.** **EXHIBIT P2 TRUE COPY OF OBJECTION DATED 22.11.2007 IN I.A. NO.5331 IN A.S. NO.46 OF 2004.** **EXHIBIT P3 TRUE COPY OF REVIEW PETITION IN A.S. NO.46 OF 2004 BEFORE THE SUB COURT, THIRUVANANTHAPURAM.** **EXHIBIT P4 TRUE COPY OF ORDER DATED 28.1.2010 OF ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.** **EXHIBIT P5 TRUE COPY OF I.A. NO.968 OF 2010 IN A.S. NO.46 OF 2004 OF THE SUB COURT, THIRUVANANTHAPURAM.** **RESPONDENT'S EXHIBITS:** **----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.9115 of 2010 and W.P(C) No.19929 of 2010 ==================================== Dated this the 05[th] day of August, 2010** ## **J U D G M E N T** Writ Petition No.9115 of 2010 concerns Ext.P4, order passed by the learned Additional Sub Judge-I, Thiruvananthapuram on I.A. No.5963 of 2009 in A.S. No.46 of 2004. That appeal arose from the judgment and decree of learned Additional Munsiff-III, Thiruvananthapuram in O.S. No.636 of 2000. That suit concerned right of user of a way described as 'C' schedule in the plaint. The suit ended in a dismissal. Plaintiff Nos.1 to 8 and 10 preferred A.S. No.46 of 2004 challenging dismissal of the suit and as the learned counsel for plaintiffs would put it, since plaintiff No.9 crossed sides and moved with the defendants he was not available to join as appellant and hence he was arrayed as respondent No.3 in the appeal, respondent Nos.1 and 2 being defendant Nos.1 and 2 in the suit. Plaintiff Nos.1 to 8 and 10 filed I.A.No.5531 of 2007 in the appeal seeking permission to withdraw the suit with liberty to file a fresh suit. That application was initially dismissed by the learned Sub Judge. Plaintiff Nos.1 to 8 and 10 filed I.A. No.5963 of 2009 ## **W.P(C) Nos.9115 & 19929 of 2010** -: 2 :- seeking review of dismissal of I.A. No.5531 of 2007. Learned Munsiff allowed that application by the impugned order dated 28.01.2010 on condition that plaintiff Nos.1 to 8 and 10 paid costs of Rs.10,000/- to defendant Nos.1 and 2. Plaintiff Nos.1 to 8 and 10 challenges imposition of costs and its excessiveness in W.P (C) No.9115 of 2010 while the order reviewing the earlier order (dismissing I.A. No.5531 of 2007) is challenged by defendant Nos.1 and 2, in W.P(C) No.19929 of 2010. Parties, for the sake of convenience are referred to as plaintiffs and defendants as in the trial court. 2. According to the plaintiffs plaint A schedule items belonged to them and plaintiff No.9 (separately) as per various documents of title referred to in the plaint. They stated that defendant Nos.1 and 2 are in possession of plaint B schedule having an extent of 28 cents in Sy.No.635/1-8 and that plaint C schedule is the way in between plaint and A and B schedules over which plaintiffs claimed possession. They stated that defendant Nos.1 and 2 have no right over plaint C schedule and accordingly prayed for a decree for prohibitory injunction concerning plaint C schedule. Defendant Nos.1 and 2 contended that the disputed way had a width of six links left by the executants of partition **W.P(C) Nos.9115 & 19929 of 2010** ## -: 3 :- deed of 1112 ME on the north and east of property of defendant Nos.1 and 2 and that the said pathway was later widened into a road having width of three metres. They claimed that the suit is bad for mis-joinder of parties and causes of action since interest of plaintiffs in plaint A schedule items is separate and it cannot be clubbed together in one suit. Learned Munsiff found defect in the frame of suit in that there are 13 beneficiaries for plaint C schedule of whom only three persons – plaintiff Nos.1 to 3 have joined the plaint, other beneficiaries are not parties to the suit, plaintiff No.4 onwards have no right but still, all the plaintiffs claimed to be absolute owners of plaint C schedule. Learned Munsiff also found that description of plaint C schedule is vague and that evidence of Advocate Commissioner shows that plaint C schedule is being used by others also. Learned Munsiff dismissed the suit. Plaintiff Nos.1 to 8 and 10 challenged judgment and decree in appeal arraying plaintiff Nos.9 as respondent No.3. In the course of appeal plaintiff Nos.1 to 8 and 10 filed I.A. No.5531 of 2007 for permission to withdraw the suit with liberty to file a fresh suit. That application was resisted by defendant Nos.1 and 2 which as I stated was dismissed and later reviewed vide the impugned order directing plaintiff plaintiff Nos.1 to 8 and 10 to **W.P(C) Nos.9115 & 19929 of 2010** ## -: 4 :- pay costs of Rs.10,000/- as condition to allow the application. It is argued by learned counsel for defendant Nos.1 and 2/petitioners in W.P(C) No.19929 of 2010 that grant of permission is against the mandate of Order XXIII Rule 1(5) of the Code of Civil Procedure (for short, “the Code”). It is also contended that appellate court should have been slow in granting permission to withdraw the suit when defendant Nos.1 and 2 were successful in getting the suit dismissed. Reliance is placed on the decisions in ## **Haji P.Abdul Rahiman v. Dr.K.P.Narayanan** (1997 [1] KLT 161) and **Sneh Gupta v. Devi Sarup** (2009 [2] KLT SN 58 (Case No.63). In response it is contended by learned counsel for plaintiff Nos.1 to 8 and 10 (petitioners in W.P(C) No.9115 of 2010) that bar under Order XXIII Rule 1(5) of the Code has no application to the facts of the case and that in so far as there is no finding in favour of defendant Nos.1 and 2 nor have they derived any benefit under the decree under challenge there was nothing illegal in appellate court permitting withdrawal of the suit with liberty to file fresh suit. 3. Order XXIII Rule 1(5) of the Code says, - “Nothing in this rule shall be deemed to **W.P(C) Nos.9115 & 19929 of 2010** ## -: 5 :- authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs”. It is not disputed that plaintiff No.9 (respondent No.3 in appeal) is not a party to I.A.No.5531 of 2007 seeking permission to withdraw the suit, or I.A.No.5963 of 2009 for review of the order dismissing I.A. No.5531 of 2007. But I must bear in mind that learned Munsiff has found and it is not disputed also, that A schedule items belong separately to plaintiff Nos.1 to 10. Hence their interest in plaint A and C schedules is not joint but separate. Each of them on the allegations made in the plaint are entitled to file separate suits. One of them cannot give a valid discharge of the claim of the other. If that be so, that one of the plaintiffs abandoned or withdrew the suit cannot affect the right of other plaintiffs. That, plaintiff No.9 has no complaint against the judgment and decree cannot affect right of other plaintiffs to challenge the said judgment and decree. Order XXIII Rule 1(5) of the Code does not in my view apply to cases where interest of the **W.P(C) Nos.9115 & 19929 of 2010** ## -: 6 :- several plaintiffs are different. In cases where the interests of several plaintiffs are different, it is open to one or more of them to withdraw the suit so far as his/their interest is concerned. In the present case, that plaintiff No.9 (respondent No.3 in the appeal) has not joined the application does not bar other plaintiffs seeking withdrawal of the suit to the extent their interest is concerned. 4. Then the question is whether permission could have been granted under Order XXXIII Rule 1(3) of the Code to withdraw the suit with liberty to file fresh suit particularly when the matter was pending in appeal. Sub-rule (3) of Rule 1 Order XXXIII states that when the court is satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds, plaintiff may be allowed to withdraw the suit with liberty to file fresh suit. Hence to seek withdrawal of suit plaintiff Nos.1 to 8 and 10 should show that the suit has to fail on account of a formal defect or other sufficient grounds exist to institute fresh suit. The expression “sufficient ground” has to be read ejusdem generis following the words 'formal defect' appearing in Order XXIII Rule 1(3) of the Code. 'Formal defect' has been understood as related to the form of the suit (not going into the merit of the case) such as mis-joinder of parties, non-payment of court fee, **W.P(C) Nos.9115 & 19929 of 2010** -: 7 :- failure to disclose cause of action, etc. 5. It is apposite to refer to the judgment of learned Munsiff in deciding whether there is any formal defect for the suit. Learned Munsiff has observed that of the thirteen beneficiaries of plaint C schedule only plaintiff Nos.1 to 3 are parties to the suit but still plaintiff Nos.1 to 10 claimed to be absolute owners of plaint C schedule. In view of that learned Munsiff was not inclined to accept contention of plaintiff Nos.1 to 10 that they are absolute owners of plaint C schedule. Another defect which learned Munsiff found is that there is no proper description of plaint C schedule. According to the learned Munsiff description of plaint C schedule is vague. Leaned Munsiff has also observed from Exts.C1 and C2 and the evidence of D.W2, Advocate Commissioner show that disputed C schedule is being used by other persons also (and no relief is claimed against such persons). Every kind of defect which does not affect merit of the case whether the defect be fatal to the suit or not, is a formal defect. Thus as per the judgment of learned Munsiff, the suit is defective in its form. On going through the judgment of learned Munsiff I am persuaded to think that the suit suffered from a formal defect in the way that expression is understood in Order XXIII Rule 1(3) of ## **W.P(C) Nos.9115 & 19929 of 2010** ## -: 8 :- the Code. 6. Then the question is whether at the stage of appeal it was justifiable to grant permission to withdraw the suit and file a fresh suit. Decisions relied on by learned counsel for defendants say that appellate court must be slow in granting permission. That is because such withdrawal could have the effect of destroying the decree that defendant has obtained. In **Haji P.Abdul Rahiman case** (supra) this Court stated that when the decree has resulted in benefit to the opposite party appellate court should be slow in allowing the suit to be withdrawn. Even those decisions did not say that appellate court shall not under any circumstance permit the suit to be withdrawn and grant permission to file fresh suit. 7. Learned counsel contended that defendant Nos.1 and 2 are prejudiced by the permission granted. Judgment and decree of learned Munsiff do not confer any right on defendant Nos.1 and 2. It only dismissed the suit. If dismissal of the suit in favour of a defendant precluded appellate court from granting permission to withdraw the suit, then power of appellate court to permit withdrawal becomes redundant. Hence mere dismissal of the suit for the reasons I have stated cannot amount to vesting ## **W.P(C) Nos.9115 & 19929 of 2010** ## -: 9 :- defendant Nos.1 and 2 with any right over the disputed way and which precluded the appellate court from granting permission. Having regard to the facts and circumstances of the case I do not find reason to interfere with the impugned order whereby learned Sub Judge has reviewed order of dismissal of I.A. No.5531 of 2007 and has permitted plaintiff Nos.1 to 8 and 10 to withdraw the suit with liberty to file a fresh suit. But so far as plaintiff No.9 is not a party to I.A. Nos.5531 of 2007 and 5963 of 2009, I make it clear that withdrawal of the suit will only be in relation to the interest of plaintiff Nos.1 to 8 and 10. 8. Now I shall advert to W.P(C) No.9115 of 2010. There, contention is that costs ought not have been awarded and at any rate it is excessive. It is within the discretion of court to order costs but of course to be exercised judicially in accordance with the known principles of law. Once that judicial discretion has been exercised it is not necessary for superior courts to interfere with imposition of costs. The suit was filed in the year 2000. Plaintiff Nos.1 to 8 and 10 suffered a dismissal of the suit and the application for withdrawal was preferred in the year 2007. Defendant Nos.1 and 2 have been fighting the case throughout. As plaintiff Nos.1 to 8 and 10 are granted permission to withdraw ## **W.P(C) Nos.9115 & 19929 of 2010** ## -: 10 :- the suit with liberty to file fresh suit, possibly defendants No.1 and 2 may be dragged into another litigation. In the circumstances court below awarded costs to defendant Nos.1 and 2. Learned Sub Judge has awarded Rs.10,000/- as costs to defendant Nos.1 and 2. Having regard to the facts and circumstances of the case I find that costs of Rs.8,000/- will be sufficient in the interest of justice. Accordingly costs awarded by the learned Sub Judge-I is modified as Rs.8,000/- to be shared by defendant Nos.1 and 2 in equal proportion. Learned counsel for plaintiff Nos.1 to 8 and 10 states that a sum of Rs.8,000/- has already been deposited in the court of learned Sub Judge in the light of the judgment of this Court which has been reviewed as per the order in R.P. No.714 of 2010. I make it clear that it will be open to defendant Nos.1 and 2 to withdraw the said amount. Resultantly, Writ Petitions are disposed of in the following lines: (i) W.P(C) No.9115 of 2010 is allowed to the extent that costs payable by plaintiff Nos.1 to 8 and 10 is modified as Rs.8,000/- (Rupees Eight thousand only). It is made clear that ## **W.P(C) Nos.9115 & 19929 of 2010** -: 11 :- observations made in this judgment are limited for the purpose of disposal of these Writ Petitions. (ii) W.P(C) No.19929 of 2010 shall stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv