SUSEELAKUTTY AMMA Vs. PILLAI

JUDGEMENT

(1.) The petitioners are the plaintiffs in O.S. No. 198 of 2003 on the file of the Court of the Munsiff of Kottarakara. The respondents are the defendants therein. The suit instituted by the petitioners for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property and from closing down the plaint B schedule pathway was dismissed by the trial court by Ext. P4 judgment delivered on 6.12.2005. Aggrieved thereby, the plaintiffs filed A.S. No. 26 of 2006 in the Court of the Subordinate Judge of Kottarakara. The appeal was later transferred to the Court of the Subordinate Judge of Karunagappally where it was renumbered as A.S. No. 10 of 2012. In that appeal, the petitioners filed I.A. No. 348 of 2012 under O. XXIII R. 1 of the Code of Civil Procedure for permission to withdraw the appeal with liberty to file a fresh suit. What the petitioners really meant was permission to withdraw the suit with liberty to file a fresh suit. The respondents opposed the application by filing Ext. P6 objections. The appellate court considered the rival contentions and dismissed I.A. No. 348 of 2012 by Ext. P7 order passed on 5.12.2012. The said order is under challenge in this Original Petition filed under Article 227 of the Constitution of India. I heard Sri. K.V. Anil Kumar, learned counsel appearing for the petitioners and Sri. B. Mohan Lal, learned counsel appearing for the respondents. I have also gone through the pleadings and the materials on record. The order passed by the court below reads as follows:-

(2.) A learned single Judge of this Court has in Amminikutty v. George Abraham, 1987 1 KerLT 574 held that an appeal is a continuation of the suit and the appellate court is also competent to grant permission to withdraw the suit. Reliance was placed on the decision of the Privy Council in Ravaneswar v. Baljnath Ram, 1915 AIR(PC) 24 in support of the said conclusion. The attention of the court below was evidently not invited to the binding decision of this Court in Amminikutty v. George Abraham, 1987 1 KerLT 574 . The order passed by the appellate court cannot, in my opinion, be therefore sustained.