Anto Marceline v. S M Treasa

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY, THE 16TH DAY OF JULY 2015/25TH ASHADHA, 1937 O.P(C).No. 2954 of 2014 (O) (OS 172/2010 of ADDL. MUNSIFF'S COURT-I, NEYYATTINKARA) PETITIONER/1ST PLAINTIFF:

ANTO MARCELINE AGED 52 YEARS, S/O.LATE S MARCELINE, MALIYAKAL HOUSE, POOVAR PO THIRUVANANTHAPURAM BY ADVS.SRI.K.B.PRADEEP SRI.ASHOK SURESH RESPONDENTS:

1.

S M TREASA W/O.LATE S.MARCELINE, MALIYAKAL HOUSE POOVAR PO, THIRUVANANTHAPURAM 695 001.

2.

M.JOSE STANLEY, S/O.S MARCELINE, VISAKH, TC 42/949-1 ASAN NAGAR, MUTTATHARA (BEHIND SERVICE CO-OPERATIVE BANK) VALLAKADAVU PO THIRUVANANTHAPURAM-08 3.

T.M.HILDA W/O.R.C.ROSWAN, E-14, BHATIA GARDEN(24) 55-MANAPAKAM ROAD, (NEAR MIOT HOSPITAL)CHENNAI 600 116 4.

T.M.VIMALA, W/O.T.V.JOHN SUKHAR, 35/2085-A PIPE LINE ROAD(CHURCH ROAD END), PALARIVATTOM PO ERNAKULAM-25 5.

T.M.VERGIN, W/O.JOHNYKUTTY, POST BOX NO.16701, AJMAN, UAE -16701 6.

T.M.LISSY W/O.WILLIAM SANJAY, 3-D2, STAR RETREAT LANE-34 JANATHA ROAD, VYTTILA, ERNAKULAM 682 019.

7.

T.M.VIJAYA W/O.BESLIN M.JOHN, NO.9/11 FOREST QUARTERS SOCIAL FORESTRY COMPLEX, PTP AVENUE, VATTIYOORKAVU PO THIRUVANANTHAPRAM 695 013.

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.7.2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P(C).No.2954/2014(O) APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.172/2010 EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENTS EXHIBIT P3 TRUE COPY OF THE SAID APPLICATION DATED 4/11/2014 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 20/11/2014 RESPONDENTS' EXHIBITS:

Nil //TRUE COPY// PA TO JUDGE PtK/

B. KEMAL PASHA, J.

................................................................ O.P.(C) No.2954 of 2014 ............................................................... Dated this the 16th day of July, 2015

J U D G M E N T

Ext.P4 order passed by the court below in Ext.P3 IA is under challenge. Through Ext.P3 IA, the plaintiff in O.S.No.172/2010 of the court below wanted to withdraw from the suit under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908 with leave to file a fresh suit. The court below has dismissed the IA on the ground that the suit does not suffer from any formal defect; whereas the defects pointed out by the petitioner through Ext.P3 could be cured merely through necessary amendments in the plaint. It is on that ground, the court below has dismissed the IA through Ext.P4 order.

O.P.(C) 2954 of 2014 -: 2 :- 2.

Even though notice has been served on the respondents, there is no representation for the respondents. Heard the learned counsel for the petitioner. 3.

The learned counsel for the petitioner has pointed out that the court below could have considered the grounds noted in Ext.P3 as sufficient grounds enabling the plaintiff to withdraw from the suit under Order XXIII Rule 1(3) of CPC. On a perusal of the records and on hearing the learned counsel for the petitioner, this Court is of the view that all the defects pointed out in Ext.P3 can still be cured through proper amendment to the suit.

This Original Petition is disposed of, by giving an opportunity to the petitioner to amend the plaint properly,. Sd/- B.KEMAL PASHA, JUDGE ul/- [True copy] P.S. to Judge