B. SANTHAKUMARIAMMA Vs. CHELLAMMA AND ORS.

JUDGEMENT

(1.) WRIT petition is filed by the plaintiff in O.S. No. 784 of 2006 on the file of the Additional Munsiff Court, Cherthala. The above suit was one for partition, and the respondents are the defendants. After evidence was completed in the case the plaintiff moved an application for amending the plaint which was objected to by the defendants. The learned Munsiff declined the amendment applied for. Then the plaintiff moved for withdrawal of the suit with liberty to file a fresh suit. That was also opposed to by the defendants. The learned Munsiff after considering the submissions made by both sides dismissed the application for withdrawal of the suit holding that after trial the suit cannot be allowed to be withdrawn with liberty to file fresh suit. Ext.P11 order so passed by the learned Munsiff is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

(2.) I heard the counsel on both sides. Suit being one for partition, the question for consideration is whether the plaintiff has any partiable right over the property scheduled in the plaint. Defendants in the present case had disputed the claim for partition canvassed by the plaintiff. A rejoinder was filed by the plaintiff after the written statement, and that was also answered with a reply statement by the defendants. The defendants had raised a contention that there was a compromise decree in respect of the very same properties covered as between the predecessors of the plaintiff and also the defendant and pursuant thereto, a partition deed was also entered 15 years before the institution of the present case. Raising such contentions they had challenged the claim of the plaintiff for partition of the scheduled items. The question that arises for consideration in the present case is for the reason evidence has been let in the case whether the plaintiff cannot withdraw the suit, and, if she has a right to withdraw whether permission is required from the court. Plaintiff being the master of the suit, she can give up the suit at any moment. The only question that would emerge then is whether such withdrawal will be an abandonment of the claim. In examining that question, the relief canvassed in the suit also emerge for consideration. Where suits are based on recurring cause of action withdrawal of the previous suit may not be fatal. Since the suit is one for claiming partition before adjudication of the suit, nothing prevents the plaintiff from withdrawing or not pressing the suit. At the most, in such circumstances cost alone can be imposed against him. Permission from the court is required only for institution of a fresh suit when such suit is to be instituted on the very same cause of action on which the previous suit was presented. So long as the plaintiff has got partiable right, the dismissal of a suit even if it is stated to be abandoned would not deprive the plaintiff the right to file a fresh suit. Such being the position of law, the conclusion formed by the court below that the suit cannot be allowed to be withdrawn and has to be continued is not correct. The question of granting permission is of least significance in the case. So much so, without going into the merits of the contentions canvassed by the defendants resisting the application and also those taken by them in the written statement that the plaintiff has no partiable right, it has to be concluded that Ext.P11 order cannot be sustained under law. The entitlement of the plaintiff to file a fresh suit for partition would depend upon whether she has any partiable right over the property. Ext.P11 order is set aside and court below is directed to consider and pass orders afresh on the application of the plaintiff taking note of the observations made above and in accordance with law. Cost incurred by the defendants shall also be taken into account while disposing the application, making appropriate provision in the order for compensating the injury suffered by them.