SARIKA Vs. RADHAMMA

JUDGEMENT

(1.) The plaintiff in O.S.No.211/2007 on the file of the Munsiff's Court, Mavelikara, in the first appellate stage seeks permission to withdraw the Original Suit with liberty to institute a fresh suit on the same cause of action or on a different cause of action.

(2.) The plaintiff instituted the suit seeking a declaration of easement right by prescription over the plaint schedule property and for consequential injunction against the defendants. The trial Court dismissed the suit, holding that the plaintiff is not entitled to a right of easement by prescription over the property. The plaintiff challenged the decree in A.S.No.3/2010 before the Additional District Court, Mavelikara. She filed I.A.No.779/2013 in the Appeal Suit under Order XXIII Rule 1 CPC, seeking permission to withdraw the suit with liberty to institute a fresh suit.

(3.) As per the order dtd. 7/11/2013, the Appellate Court allowed the I.A. subject to the payment of Rs.4,000.00 as costs to the defendants. The defendants thereafter filed I.A.No.782/2013, seeking review of the order under Sec. 114 and Order XLVII Rule 1 of the CPC. The review petition was allowed, and the order dtd. 7/11/2013 was reviewed. The learned District Judge heard both sides and passed Ext.P5 order, dismissing the application seeking withdrawal of the suit with liberty to institute a fresh suit regarding the same subject matter. This order is under challenge in this original petition.