Kerala High Court
K.P.Roy vs M.P.Babu on 8 July, 2010
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 246 of 2010()
1. K.P.ROY, S/O.KOYIKARA PAPPU, KARMEL
... Petitioner
Vs
1. M.P.BABU, S/O.LATE PAILAPPAN,
... Respondent
2. M.P.MATHEW, S/O.LATE PAILAPPAN,
3. JOHN P.MOONJALIL,
4. ANNIE THOMAS, W/O.THOMAS,
5. LISSY JAIMES, KALPARAMBATH HOUSE,
6. MERLY JOHNSON, ELAVATHINGAL HOUSE,
For Petitioner :SRI.RAJU JOSEPH
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/07/2010
O R D E R
THOMAS P JOSEPH, J.
----------------------------------------
C.R.P.No. 246 of 2010
---------------------------------------
Dated this 08th day of July, 2010
ORDER
Plaintiff in O.S.No.325 of 2008 of the court of learned Principal Sub Judge, N. Paravur is the petitioner before me challenging the order on I.A.No.1345 of 2010 to the extent it went against petitioner in that, while granting permission to withdraw the suit learned Sub Judge has not granted leave to file fresh suit as prayed for. Petitioner filed the suit for specific performance of an agreement for sale against legal representatives of one Pailappan on the strength of an alleged agreement for sale dated 09-06-2005. It is the case of petitioner that much prior to that on 07-03-2005 there was another agreement for sale between petitioner and the said Pailappan as per which certain payments were made to Pailappan and as per terms of that agreement petitioner discharged liability of Catholic Syrian Bank. Those matters were omitted to be mentioned in the plaint. But petitioner in his evidence stated so and produced some documents. Since the transaction pursuant to the agreement dated 09-06-2005 was not pleaded in the plaint petitioner was advised that it is a formal defect in the suit and he C.R.P.No.246 of 2010 : 2 : could file a fresh suit after withdrawing the present suit with permission of the court to file fresh suit. Accordingly he filed I.A.No.1345 of 2010. That application was opposed by the respondent. Learned Sub Judge stated that application is highly belated and hence there is no sufficient ground to allow the prayer with leave to file fresh suit. Application was allowed in part. Permission was granted to withdraw the suit but, without permission to file a fresh suit. That according to the petitioner is illegal.
2. I have heard counsel on both sides. When an application is made seeking permission to withdraw the suit with liberty to file fresh suit the court cannot bifurcate the reliefs sought for and allow the application in part. Either the application has to be allowed in toto, or dismissed. The order under challenge suffers from illegality in that, court below while permitting to withdraw the suit has refused permission to file fresh suit. The order under challenge therefore cannot be sustained.
3. Learned counsel for petitioner contends that the only defect was that plaint did not state about the agreement dated 07-03-2005 or the transactions pursuant to that. Learned C.R.P.No.246 of 2010 : 3 : counsel therefore requested that permission may be granted to file fresh suit while the present suit is allowed to be withdrawn. Since that is a matter to be decided by the court below at the first instance, I am not considering that argument. That matter has to be decided by the learned Sub Judge.
Resultantly this revision petition is allowed and order under challenge on I.A.No.1345 of 2010 is set aside. That application is remitted to the court below for fresh disposal after hearing both sides. I make it clear that if petitioner has any other remedy in the matter it will be open to him to pursue that also if the law provides and permits such a course of action.
(THOMAS P JOSEPH, JUDGE) Sbna/-