NEELAKANTA PILLAI Vs. MADHAVA KURUP

JUDGEMENT

(1.) THE question involved in this revision is whether the plaintiffs in a suit could be granted permission to withdraw the suit with liberty to institute another suit on the basis of a cause of action different from the one involved in the suit.

(2.) THE revision petitioners filed O.S. No.16 of 1992, on the file of the Court of the Munsiff of Haripad against respondents for permanent prohibitory injunction, for fixation of boundary and for mandatory injunction. The plaintiffs claimed title to an extent of one cent 650 Sq. links of land (plaint A schedule property). They purchased it from a larger area having an extent of 22 cents. The plaintiffs have constructed a building in the property purchased by them and are doing business there. Plaint B schedule item Nos. 1 and 2 admittedly belonged to the first defendant. The first defendant had also purchased B schedule item Nos. 1 and 2 from out of the total extent of 22 cents. The plaintiffs alleged that under the pretext of making certain constructions, the defendants removed the boundary stones demarcating plaint A and 6 schedule properties and in that process encroached upon a small portion of plaint A schedule property. The defendants denied the allegations made in the plaint. On the other hand, the defendants contended that the plaintiffs have encroached upon their property and on that allegation, they filed O.S. No. 57 of 1993 for recovery of possession of the encroached portion.

(3.) HOWEVER , instead of going on with the trial of the suits, the revision petitioners (plaintiffs in O.S. No. 16 of 1992) filed an application to withdraw the suit with liberty to file a fresh suit. They contended that there are certain formal defects in the suit and that they should be permitted to withdraw from the suit with liberty to file a fresh suit. It was contended by the petitioners that the total extent of the land is not 22 cents, but 23 cents and, therefore, all the assignees including the plaintiffs, defendants and one Narayanan Nair are entitled to proportionate benefit of the additional extent of one cent. The revision petitioners pointed out that Narayanan Nair is not a party to the suit and for a proper determination of the real dispute involved in the case, it is necessary to allow the plaintiffs to bring a fresh suit with Narayanan Nair also in the array of parties. The court below took note of the fact that there is no case in the plaint, as now put forward by the petitioners, that they are entitled to the proportionate benefit of the excess extent of one cent of land. The plaintiffs having complied with the direction in the remand order, they are not entitled to apply for withdrawal from the suit with liberty to file a fresh suit. It was also found that the provisions of Order 23 Rule 1 should not be exercised to avoid the judgment passed by the Appellate Court by remanding the case.