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2025 Supreme(Online)(Ker) 23068
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SARIKA.S – Appellant
Versus
RADHAMMA – Respondent
OP(C) 1993/2015
A plaintiff may withdraw a suit with liberty to file a fresh suit for formal defects in pleadings, emphasizing the need for correct legal advice in claims for easement rights.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXIII Rule 1 - Withdrawal of suit - Plaintiff sought permission to withdraw suit for easement rights and to file a fresh suit due to formal defects in the original pleadings - Appellate Court initially allowed withdrawal but later dismissed the application on review - Court permitted withdrawal, emphasizing the plaintiff's right to seek easement by necessity and the importance of correcting formal defects in pleadings. (Paras 1-21)
(B) Easement by necessity - The court recognized that the plaintiff could have succeeded in establishing easement rights had the appropriate pleadings been made, highlighting the significance of legal advice in framing claims. (Paras 5, 12, 20)
(C) Rights of defendants - The court addressed concerns regarding the crystallization of rights in favor of defendants, affirming that the plaintiff's withdrawal would not nullify these rights if properly substantiated. (Paras 6, 16, 17)
(D) Formal defects - The court clarified the meaning of 'formal defect' in the context of withdrawal of suits, allowing for correction of pleading errors without affecting the merits of the case. (Paras 18, 19) (E) Costs - The plaintiff was ordered to pay costs to the defendants upon withdrawal of the suit. (Paras 3, 21)
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 onAvenue Supermarts Pvt. Ltd. v. Nischint Bhalla and Others (2015 KHC 4670) , K.S. Bhoopathy and Ors. v. Kokila and Ors. (AIR 2000 SC 2132) andSugathan 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. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, abandon his suit or abandon a part of his claim:
PROVIDED that where the plaintiff is a minor or other person to whom
