A plaintiff may withdraw a suit to pursue a fresh claim of easement by necessity if formal defects in the original pleadings are established, without nullifying the rights of the defendants.

JUDGMENT :

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 dated 07.11.2013, the Appellate Court allowed the I.A. subject to the payment of Rs.4,000/- as costs to the defendants. The defendants thereafter filed I.A.No.782/2013, seeking review of the order under Section 114 and Order XLVII Rule 1 of the CPC. The review petition was allowed, and the order dated 07.11.2013 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.

4. I have heard the learned counsel for the petitioner/plaintiff and the learned counsel for the respondents/defendants.

5. The learned counsel for the petitioner submitted that there is a formal defect in the framing of the suit, in the sense that the plaintiff omitted to plead the right of easement by necessity in respect of the subject matter. The learned counsel submitted that, due to wrong legal advice, the plaintiff failed to plead that the plaintiff was entitled to easement right by way of necessity. It is submitted that this is a case of severance of tenements, and the plaintiff is entitled to the relief of easement right by way of necessity. It is also submitted that the property is a landlocked one.

6. The learned counsel for the respondents/defendants submitted that granting liberty to the plaintiff to institute a fresh suit on the same subject matter would nullify the rights crystallized in favour of the defendants. The learned counsel relied on Avenue Supermarts Pvt. Ltd. v. Nischint Bhalla and Others ( 2015 KHC 4670 ), K.S. Bhoopathy and Ors. v. Kokila and Ors. ( AIR 2000 SC 2132 ) and Sugathan K. R. v. Jyothi [ILR 2014(3) Ker. 621] in support of his contentions.

7. The learned counsel for the petitioner relied on Haji P. Abdul Rahiman and Others vs. Dr. K. P. Narayanan ( 1997 KHC 276 ) in support of his contentions. The learned counsel for the petitioner submitted that the plaintiff seeks the liberty to institute a fresh suit to claim the right of easement by necessity alone. Therefore, the learned counsel submitted that the question of nullifying the right crystallized in favour of the defendants does not arise.

8. The plaintiff initially claimed the right of easement by prescription over the plaint schedule property. She did not plead that she was entitled to the right of easement by necessity on the subject matter. She lost the case when the Trial Court held that she failed to prove the ingredients of claiming the right of easement by prescription.

9. At the appellate stage, she filed an application seeking withdrawal, contending that she failed to seek relief in respect of the subject matter by way of easement by necessity.

10. The relevant statutory provision is Order XXIII Rule 1 CPC, which is extracted below:-

“1. Wi