RAMAKRISHNAN Vs. VELUNNI

JUDGEMENT

(1.) THE revision is filed against the order dated 13-12-2010 passed in O.S. No. 81 of 2009 on the file of the Court of the Munsiff Magistrate of Mannarkkad, by which the court below repelled the contention raised by the petitioner/defendant that the suit is not maintainable.

(2.) THE suit, namely, O.S. No. 81 of 2009 is for recovery of possession. There was an earlier suit (O.S. No. 129 of 2006) filed by the plaintiff in the present suit. The earlier suit was for permanent prohibitory injunction filed in the year 2006. In 2009, the plaintiff sought permission to withdraw from O.S. No. 129 of 2006. The court permitted withdrawal of the suit with liberty to file a fresh suit, on payment of costs of Rs. 1,500.

(3.) IT is true that the earlier suit was for injunction and the present suit is for recovery of possession. The property involved in both the suits is the same. Parties are also the same. However, the cause of action is different. The reliefs sought for are also different. If the earlier suit for permanent prohibitory injunction was dismissed on the merits finding that the plaintiff was not in possession of the property on the date of suit, still the plaintiff could file a suit for recovery of possession on the strength of his title. Such a suit would not be barred by res judicata unless the question of title was raised for consideration and after trial a finding was arrived at by the court in the earlier suit that the plaintiff had no title to the property. If the earlier suit was dismissed on the ground of the plaintiff's failure to prove possession, nothing prevents him from filing a suit based on title. Even if the plaintiff was granted permission to institute a fresh suit, he need not file a fresh suit as provided under sub-rule 3 of Rule 1 of Order XXIII of the Code of Civil Procedure. That does not preclude him from filing a suit based on title, if otherwise he is entitled to do so. The mere fact that permission was granted to withdraw from a suit and to institute a fresh suit as provided under sub-rule 3 of Rule 1 of Order XXIII of the Code of Civil Procedure, the rights of the plaintiff de hors such grant of permission, would not be affected by such permission being granted. As stated earlier, even if the first suit filed by the plaintiff for injunction was dismissed, there was no bar for him to file a suit for recovery of possession. The decision in Neelakanta Pillai v. Madhava Kurup [2007 (2) K.L.T. 340] does not apply to the facts of the present case. If so, I am of the view that the court below was right in holding that the suit is maintainable. There is no jurisdictional error or error of law warranting interference. The Civil Revision Petition is, accordingly, dismissed.