Kerala High Court Allows Institution Of Fresh Suit Over Litigant's Claim That Proper Relief Could Not Be Sought Due To Wrong Legal Advice

The petitioner had filed a suit seeking a declaration of easement right of prescription over a property and for consequential injunction against the defendants. The trial court dismissed the suit saying that she failed to prove ingredients for claiming the right of easement by prescription.

Against this order, she filed an appeal before the District Court and in that appeal, filed an interim application seeking permission to withdraw the suit with liberty to institute a fresh suit. This was initially allowed. However, later on a review filed by the defendants, the order was reviewed and the application for withdrawal of suit with liberty to institute a fresh suit was dismissed. Against this order, the petitioner approached the High Court.

The petitioner argued that due to wrong legal advice, she did not plead the right to an easement by necessity. She submitted this was a 'formal defect' and the suit can be withdrawn for that reason under Order XIII Rule 1(3)(a). She submitted this was a case of severance of tenement and the property is a landlocked one and she is entitled to the relief of easement right by way of necessity.

The defendants opposed this saying that allowing the petitioner to file a fresh suit would nullify the rights crystallized in the favour of the defendants. The plaintiff however argued that there would be no question of nullifying the right of the defendants as the plaintiff seeks liberty to institute a fresh suit to claim right of easement by necessity alone.

Justice K. Babu noted that the trial court had found that the property was landlocked and the plaintiff could have succeeded in establishing easement rights by necessity.

The Court noted that the High Court had in Amina v Kunjubawa (2005) observed that the plaintiff can seek withdrawal of suits in appellate stage also. The Supreme Court in R. Rathinavel Chettiar and Another v Sivaraman and Others (1999) had laid down that withdrawal of suit at the appellate stage can be allowed only rarely when a strong case is made out as it have the effect of destroying or nullifying the decree affecting the rights which was vested by that decree.

The High Court held that since the plaintiff is seeking to institute a fresh suit seeking relief of easement by necessity alone, the question of nullifying the right crystallized in favour of the defendants does not arise. Further, the Court observed that there is a strong case made out by the petitioner that she acquired the right of easement by necessity in respect of the property which remains landlocked.

The High Court noted that in Sugathan K. R. v Jyothi (2014) the High Court had identified mistakes in not seeking proper relief, failure to disclose cause of action and defect in the prayer clause as reasons coming under 'formal defect'. In another case, Beniram and Others v Gaind and Others, the Supreme Court allowed to withdraw the suit and file a fresh suit on the ground of non-pleading.

The Court seeing that proper relief could not be claimed due to wrong legal advice, liberty was given to withdraw the suit and institute a fresh suit confined to the relief of easement by necessity. Petitioners were directed to pay defendants Rs. 5000 as costs.

Counsel for the Petitioners: Advocates K. Sasikumar, K. Janardhana Shenoy, V. K. Prasad, R. Rohit, V. N. Rajappan

Counsel for Respondents: Advocates Legith T. Kottakkal, R. PAdmakumar, S. Vinod Bhat

Case No: OP(C) 1993 of 2015

Case Title: Sarika S. v Radhamma and Others

Citation: 2025 LiveLaw (Ker) 132