THRESSIA @ KOCHU THRESSIA Vs. VAREETHA D/O THRESSAMMA

JUDGEMENT

(1.) DEFENDANT in O.S. No. 797 of 2008 of the court of learned Additional Munsiff -II, Neyyattinkara is the petitioner before me challenging Ext.P5, order dismissing I.A. No. 6028 of 2009. Respondent sued petitioner for prohibitory injunction. Petitioner filed I.A. No. 7422 of 2008 against the respondent and obtained Ext.P1, order which permitted petitioner to construct the demolished portion of compound wall of her property. Court permitted petitioner to reconstruct demolished portion of the compound wall in the presence of an Advocate Commissioner. Advocate Commissioner submitted Ext.P3, report seeking police assistance since his attempt to execute the commission warrant was (allegedly) obstructed by the respondent and her men. In meantime petitioner made a counter claim against respondent for recovery of damages. While so, respondent sought withdrawal of the suit and without noting that the counter claim is pending learned Munsiff allowed the request. Later on the request of petitioner the counter claim was restored to file. Thereafter petitioner filed Ext.P4, application for police assistance for execution of commission warrant pursuant to Ext.P1, order. Ext.P4, application was dismissed by the learned Munsiff vide Ext.P5, order observing that since I.A. No. 7422 of 2008 was filed and order thereon was obtained before petitioner filed the counter claim, that application must be treated as one filed in the suit which was allowed to be withdrawn and hence, that application or the order passed thereon cannot survive. In that view of the matter Ext.P4, application was dismissed. Learned Counsel contends that though the suit was withdrawn counter claim has been restored to file.

(2.) IT is not disputed that I.A. No. 7422 of 2008 was filed at a time when petitioner had not filed her counter claim. Necessarily that application was filed in the suit which has been withdrawn. The effect of withdrawal of suit on pending interim orders is that interim orders come to an end unless the suit is revived and the interim applications are restored (See Jagdhari and Ors. v. Vth Additional District Judge, Azamgarh and Anr. : AIR 1992 All 368). In that view of the matter learned Munsiff cannot be faulted with in holding that order on I.A. No. 7422 of 2008 did not survive. It is pointed out by learned Counsel for petitioner that petitioner has already filed O.S. No. 794 of 2008 against respondent in the same court for a decree for prohibitory injunction concerning the same matter. I make it clear that it will be open to the petitioner to move appropriate application in the appropriate suits if she is otherwise entitled to that course seeking permission to construct the compound wall.